PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 07-4588

MARK HOHIDER; ROBERT DiPAOLO,

On Behalf of Themselves

and All Others Similarly Situated

v.

UNITED PARCEL SERVICE, INC.; DOES 1-100

PRESTON EUGENE BRANUM,

On Behalf of Himself and All

Others Similarly Situated

v.

UNITED PARCEL SERVICE, INC.; DOES 1-100

(Consolidated D.C. No. 04-cv-0363)

UNITED PARCEL SERVICE, INC.,

Appellant

The Honorable Sandra Day O’Connor, Associate Justice*

(Ret.) of the Supreme Court of the United States, sitting by

designation.

2

On Appeal from the United States District Court

for the Western District of Pennsylvania

D.C. Civil Action No. 04-cv-0363

(Honorable Joy Flowers Conti)

Argued November 20, 2008

Before: SCIRICA, Chief Judge, and

RENDELL, Circuit Judges, and

O’CONNOR, Associate Justice (Ret.)*

Filed: July 23, 2009

MARK A. PERRY, ESQUIRE (ARGUED)

EUGENE SCALIA, ESQUIRE

Gibson Dunn & Crutcher

1050 Connecticut Avenue, N.W., 9 Floorth

Washington, D.C. 20036-5306

RACHEL S. BRASS, ESQUIRE

Gibson Dunn & Crutcher

555 Mission Street, Suite 3000

3

San Francisco, California 94105-4505

PERRY A. NAPOLITANO, ESQUIRE

Reed Smith

435 Sixth Avenue

Pittsburgh, Pennsylvania 15219

Attorneys for Appellant

JUDITH S. SCOLNICK, ESQUIRE (ARGUED)

Scott & Scott

29 West 57th Street, 14 Floorth

New York, New York 10019

DAVID R. SCOTT, ESQUIRE

Scott & Scott

108 Norwich Avenue

P.O. Box 192

Colchester, Connecticut 06415

GEOFFREY M. JOHNSON, ESQUIRE

Scott & Scott

12434 Cedar Road, Suite 12

Cleveland Heights, Ohio 44106

CHRISTIAN C. BAGIN, ESQUIRE

Wienand & Bagin

First & Market Building, Suite 1010

100 First Avenue

4

Pittsburgh, Pennsylvania 15222-1514

Attorneys for Appellees,

Mark Hohider, Robert DiPaolo

and Preston Eugene Branum

RAE T. VANN, ESQUIRE

Norris Tysse Lampley & Lakis

1501 M Street, N.W., Suite 400

Washington, D.C. 20005

Attorney for Amicus Curiae-Appellant,

The Equal Employment Advisory Council

ROBIN E. SHEA, ESQUIRE

Constangy Brooks & Smith

100 North Cherry Street, Suite 300

Winston-Salem, North Carolina 27101

Attorney for Amicus Curiae-Appellant,

The Society for Human Resource Management

JOHN H. BEISNER, ESQUIRE

O'Melveny & Myers

1625 Eye Street N.W.

Washington, D.C. 20006

Attorney for Amicus Curiae-Appellant,

Chamber of Commerce of the United States of America

5

MICHAEL D. LIEDER, ESQUIRE

Sprenger & Lang

1400 Eye Street, N.W., Suite 500

Washington, D.C. 20005

Attorney for Amici Curiae-Appellees,

The National Employment Lawyers Association

and American Association of Retired Persons

BRAD SELIGMAN, ESQUIRE

Impact Fund

125 University Avenue, Suite 102

Berkeley, California 94710

Attorney for Amici Curiae-Appellees,

The Public Interest Law Center of Philadelphia

Disability Rights Network of Pennsylvania

Disability Rights Education and Defense Fund, Inc.

Disability Rights Legal Center

The Impact Fund

The Legal Aid Society – Employment Law Center

The National Disability Rights Network

New Jersey Protection and Advocacy, Inc.

OPINION OF THE COURT

6

SCIRICA, Chief Judge.

At issue in this interlocutory appeal under Fed. R. Civ.

P. 23(f) is whether the District Court properly certified a

nationwide class of employees alleging a pattern or practice of

unlawful discrimination under Title I of the Americans with

Disabilities Act of 1990 (ADA), 42 U.S.C. §§ 12101–12117.

Analogizing to pattern-or-practice discrimination suits brought

under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§

2000e–2000e-17, the District Court found certain of named

plaintiffs’ claims and requested relief could be adjudicated on

a classwide basis in a manner consistent with Rule 23(a) and

(b)(2). We disagree, and will reverse the court’s grant of class

certification and remand for proceedings consistent with this

opinion.

I.

Named plaintiffs Mark Hohider, Robert DiPaolo, and

Preston Eugene Branum (“plaintiffs”) are employees of

package-delivery company United Parcel Service, Inc. (“UPS”).

They brought this civil action against UPS on behalf of

themselves and all others similarly situated, alleging UPS has

adopted and implemented companywide employment policies

that are unlawfully discriminatory under the ADA. On March

10, 2004, plaintiffs Hohider and DiPaolo filed suit under the

The Rehabilitation Act claim was withdrawn in response to1

a motion to dismiss by UPS.

UPS divides its operations within the United States into2

sixty geographic districts. For the purpose of evaluating the

motion for class certification, the District Court permitted

discovery from five of these districts, including “the Laurel

Mountain district directly implicated by the individual named

plaintiffs’ allegations.” Hohider v. UPS, 243 F.R.D. 147, 156

(W.D. Pa. 2007).

7

ADA and the Rehabilitation Act, and on June 29, 2004, they1

moved for class certification. The District Court permitted

limited discovery with respect to the class certification motion.2

On November 4, 2004, while that discovery was proceeding,

plaintiff Branum filed a similar suit against UPS, alleging

discriminatory practices in violation of the ADA and seeking

class treatment of his claims. Counsel for Hohider and DiPaolo

moved to consolidate the two cases, which UPS opposed. The

court initially granted consolidation for the purpose of discovery

only, and subsequently consolidated the cases for all purposes.

Plaintiffs’ claims of unlawful discrimination focus on

UPS’s alleged treatment of employees who attempt to return to

work at UPS after having to take leave for medical reasons.

Hohider, DiPaolo, and Branum each suffered an injury of some

sort during the course of their employment with UPS, leaving

them unable to return to their respective previous positions at

the company without some form of permanent medical

Hohider began at UPS in 1986 as a part-time3

loader/unloader, and worked part-time in various positions at

UPS in the subsequent years, including as a loader, a sorter, and

a package-car driver. In 1999, a vehicle he was operating at

work was struck from behind, resulting in an injury to his back

later diagnosed to be disc herniation with left leg radiculopathy.

UPS hired DiPaolo in 1972 as a part-time loader/unloader, and

he became a full-time package-car driver in 1978. He suffered

a workplace injury in 1997 and developed reflex sympathetic

dystrophy, a neurological disorder. Branum started working as

a mechanic at UPS in 1981. He suffered a neck injury on the

job which required surgery in November 2004. See Hohider,

243 F.R.D. at 229–30.

8

restriction. Their subsequent attempts to resume work at UPS3

were unsuccessful. According to plaintiffs, UPS, as a matter of

companywide policy, refuses to offer any accommodation to

employees seeking to return to work with medical restrictions,

effectively precluding them from resuming employment at UPS

in any capacity because of their impaired condition. Namely,

plaintiffs allege UPS

(1) enforce[es] a “100% release” or “no

restrictions” unwritten policy, which prohibits

employees from returning to UPS in any vacant

position unless the employee can return to his or

her last position without any medical restrictions;

(2) disseminat[es] a written corporate “ADA

9

compliance policy,” which is implemented

nationwide to delay and avoid providing

accommodations, that is illegal, both on its face

and as applied;

(3) us[es] uniform job descriptions, which

intentionally fail to describe the essential

functions of available UPS jobs, as a pretext to

prevent disabled employees from holding any

UPS job;

(4) prohibit[s] employees from returning to work

in an alternative job within the employees’

restrictions and prevent[s] employees from using

union seniority rights to transfer to a position that

accommodates their disabilities;

(5) withdraw[s] accommodations previously

provided to disabled workers, and then den[ies]

requests for the previously provided

accommodations; and

(6) treat[s] persons who make requests for

accommodations differently and less favorably in

the terms, conditions, rights and privileges, of or

incident to, their employment as a result of

engaging in this protected act under the ADA.

Hohider v. UPS, 243 F.R.D. 147, 153 (W.D. Pa. 2007) (citing

Based on the discovery performed in UPS’s five sample4

districts, “plaintiffs extrapolated . . . that there are potentially

36,290 class members, although there could be more or less than

that number.” Hohider, 243 F.R.D. at 213.

10

Pls.’ Br. Supp. Mot. Class Certification 3–4). These policies of

non-accommodation, plaintiffs contend, constitute patterns and

practices of intentional discrimination prohibited under the

ADA.

Plaintiffs asked the District Court to certify a nationwide

class with respect to these claims, and sought various forms of4

classwide relief, including injunctive and declaratory relief,

back pay, and compensatory and punitive damages. Plaintiffs

proposed the following class definition for certification:

Those persons throughout the United States who:

(i) according to the records of UPS, its agents and

contractors have been employed by UPS at any

time since May 10, 2000, including those

employees absent from work and receiving either

workers’ compensation or short or long term

disability insurance benefits; and (ii) have been

absent from work because of a medical

impairment; and (iii) are disabled as defined

under the Americans with Disabilities Act

(ADA); and (iv) have attempted to return to work

or continue to work at UPS or have submitted to

UPS a medical release that permits the employee

According to their original complaint, plaintiffs Hohider and5

DiPaolo “br[ought] this action as a class action pursuant to Rule

23(a), (b)(1), (b)(2) and (b)(3) of the Federal Rules of Civil

Procedure.” Hohider & DiPaolo Compl. ¶ 19. The District

Court found, however, that “[s]ubsequent filings with the court,

and in particular plaintiffs’ briefing in support of their motion

for class certification, . . . indicate that plaintiffs seek

certification solely under Rule 23(a) and Rule 23(b)(2).”

Hohider, 243 F.R.D. at 233; see Pls.’ Br. Supp. Mot. Class

Certification 4, 39.

11

to work with restrictions and conditions, or have

been disqualified by UPS from returning to work;

and (v) were harmed as a result of UPS’s policies,

practices and procedures that control reentry into

the workplace or otherwise govern the making of

reasonable accommodations under Title I of the

ADA to employees in UPS’s workforce.

Excluded from the Class are all presently working

UPS management employees with supervisory

authority over the formulation or implementation

of the UPS policies and practices alleged in this

action to violate the ADA.

Id. at 154 (citing Pls.’ Br. Supp. Mot. Class Certification 4–5).

The District Court analyzed plaintiffs’ motion for class

certification under Fed. R. Civ. P. 23(a) and (b)(2). The court5

12

premised its analysis on a two-stage evidentiary framework that

the Supreme Court has promulgated for adjudicating pattern-or-

practice claims of discrimination under Title VII of the Civil

Rights Act of 1964, discussed in greater detail infra. Applying

this framework to plaintiffs’ ADA claims, the court found three

of them satisfied the requirements of Rule 23(a) and (b)(2).

Accordingly, the court certified those claims for class treatment,

and modified plaintiffs’ proposed class definition to incorporate

them. The court also removed from the proposed class

definition the requirement that class members be “disabled as

defined under the [ADA]” and “harmed as a result of UPS’s

policies, practices and procedures that control reentry into the

workplace or otherwise govern the making of reasonable

accommodations under Title I of the ADA to employees in

UPS’s workforce.” According to the court, “[t]his exclusion

would make determining membership in the class less

problematic by removing the criteria which require what are

arguably legal conclusions and may entail individualized

inquiries,” Hohider, 243 F.R.D. at 209, and would place the

“focus on the alleged conduct at issue rather than the ease of

identifying the class members prior to determinations of

liability,” which it considered most fitting for the broad

injunctive relief sought under Rule 23(b)(2). Id. at 210. The

court approved for certification the following modified class

definition:

Those persons throughout the United States who:

(i) according to the records of UPS, its agents and

The District Court detailed the factual background of the6

discriminatory policies alleged in the three claims certified for

class treatment. See Hohider, 243 F.R.D. at 166–85. We will

not replicate that effort here, but offer a brief summary of those

policies to provide context for our analysis on appeal. As noted,

plaintiffs allege UPS has an unofficial, companywide “100%

healed” policy, under which “UPS systematically requires

employees attempting to return from medical leave to present a

full medical release—one without any permanent

restriction—certifying that the employee is able to perform the

13

contractors, have been employed by UPS at any

time since May 10, 2000, including those

employees who were absent from work and were

receiving either workers’ compensation or short

or long term disability insurance benefits; and

(ii) have been absent from work because of

medical reasons; and

(iii)(A) did not return to work by reason of UPS’s

alleged 100% healed policy; or

(B) did not return to work by reason of UPS’s

allegedly discriminatory implementation of its

formal ADA compliance policy; or

(C) did not return to work by reason of the

allegedly discriminatory use by UPS of uniform

pretextual job descriptions.6

‘essential functions’ of the employee’s last job before allowing

them to return to work in any capacity at UPS.” Pls.’ Br. 4.

UPS has in place an official, written ADA compliance

procedure, which outlines a ten-step process whereby employees

with impairments can interact with various management

personnel at UPS to determine whether their conditions can be

reasonably accommodated. Plaintiffs allege, however, that

“[t]his so-called ‘ten-step accommodation process’ is the

embodiment of bad faith and discriminatory intent,” as it

“unquestionably is intended, designed and administered only to

unnecessarily delay and prevent the provision of reasonable

accommodations as the usual practice, while creating a false

record of procedural compliance with the ADA” and reinforcing

UPS’s actual, unlawfully discriminatory policy that only

employees “100% healed” may return to work at UPS. Pls.’ Br.

Supp. Mot. Class Certification 3, 15.

Plaintiffs also allege UPS’s official job descriptions

include extraneous and excessively demanding physical

requirements, which are designed to foreclose impaired

employees from qualifying for employment in any position at

UPS. For example, plaintiffs contend almost every job

description at UPS lists a seventy-pound lifting requirement as

an “essential function” of the position, even though many of the

positions would rarely, if ever, require such ability. See id. at

27; see also id. (“This 70-pound lifting requirement is even

claimed by UPS to be an essential function of management jobs

although the collective bargaining agreement prohibits

14

management from doing this jealously-guarded ‘union work.’”).

It is not clear whether there are other aspects of UPS’s job

descriptions in addition to this lifting requirement that plaintiffs

consider pretextual and discriminatory. Furthermore, though the

District Court certified this claim regarding UPS’s use of

pretextual job descriptions, it expressed uncertainty in its

certification analysis over whether the allegation was intended

to assert an independent violation of the ADA, or only to

provide evidentiary support for plaintiffs’ other claims. See

Hohider, 243 F.R.D. at 221 n.87 (noting that “[i]f this claim

otherwise satisfies Rule 23, plaintiffs will need to refine whether

they are challenging the use of these job descriptions as

alternative violations of the ADA or relying on this policy as

evidentiary support for the challenge to UPS’s overall formal

ADA compliance policy”).

15

Excluded from the Class are all presently working

UPS management employees with supervisory

authority over the formulation or implementation

of the UPS policies and practices alleged in this

action to violate the ADA.

Id. at 246. As to relief, the court determined plaintiffs’ claims

for compensatory and punitive damages could not be certified

for classwide treatment under Rule 23(b)(2), but it withheld

judgment on plaintiffs’ back-pay claims, concluding that

“[p]laintiffs . . . may be able to seek back pay or other equitable

relief for individual class members if there is a protocol for

16

identifying those monetary damages which sets forth the

objective standards to be utilized in determining the amount of

those damages in a way that does not require additional hearings

on individualized circumstances.” Id. at 245. The court also

noted that, having certified the class, it would revisit at a

subsequent status conference with the parties the issue of

bifurcating the proceedings in accordance with the two-stage

evidentiary framework mentioned supra (having previously

denied without prejudice plaintiffs’ motion for bifurcation,

subject to the court’s decision on class certification). Id. at

244–45. UPS petitioned for permission to appeal the grant of

certification under Fed. R. Civ. P. 23(f), which we granted.

II.

We have jurisdiction over this interlocutory appeal under

28 U.S.C. § 1292(e) and Fed. R. Civ. P. 23(f). “We review a

class certification order for abuse of discretion, which occurs if

the district court’s decision ‘rests upon a clearly erroneous

finding of fact, an errant conclusion of law or an improper

application of law to fact.’” In re Hydrogen Peroxide Antitrust

Litig., 552 F.3d 305, 312 (3d Cir. 2008) (quoting Newton v.

Merrill Lynch, Pierce, Fenner & Smith, 259 F.3d 154, 165 (3d

Cir. 2001)). “[W]hether an incorrect legal standard has been

used is an issue of law to be reviewed de novo.” Id. (alteration

in original) (internal quotation marks omitted).

“Class certification is proper only ‘if the trial court is

satisfied, after a rigorous analysis, that the prerequisites’ of Rule

As we recently noted, 7

[c]lass certification under Rule 23 has two

primary components. The party seeking class

certification must first establish the four

requirements of Rule 23(a): “(1) the class is so

numerous that joinder of all members is

impracticable [numerosity]; (2) there are

questions of law or fact common to the class

[commonality]; (3) the claims or defenses of the

representative parties are typical of the claims or

defenses of the class [typicality]; and (4) the

representative parties will fairly and adequately

protect the interests of the class [adequacy].”

Fed. R. Civ. P. 23(a). If all four requirements of

Rule 23(a) are met, a class of one of three types

(each with additional requirements) may be

certified. See Fed. R. Civ. P. 23(b)(1)–(3).

In re Hydrogen Peroxide, 552 F.3d at 309–10 n.6. This class

has been certified under Rule 23(b)(2), which applies to class

actions where “the party opposing the class has acted or refused

to act on grounds that apply generally to the class, so that final

injunctive relief or corresponding declaratory relief is

appropriate respecting the class as a whole.” Fed. R. Civ. P.

23(b)(2).

17

23 are met.” Id. at 309 (quoting Gen. Tel. Co. of Sw. v. Falcon,7

457 U.S. 147, 161 (1982)). “Because the decision whether to

certify a class ‘requires a thorough examination of the factual

18

and legal allegations,’ the court’s rigorous analysis may include

a ‘preliminary inquiry into the merits,’ and the court may

‘consider the substantive elements of the plaintiffs’ case in order

to envision the form that a trial on those issues would take.’”

Id. at 317 (citations omitted) (quoting Newton, 259 F.3d at 166,

168); see also id. at 319 (“A critical need is to determine how

the case will be tried.” (quoting Fed. R. Civ. P. 23 advisory

committee’s note, 2003 Amendments)). “A district court that

premises its legal analysis on an erroneous understanding of the

governing law has abused its discretion.” Oscar Private Equity

Invs. v. Allegiance Telecom, Inc., 487 F.3d 261, 264 (5th Cir.

2007).

As noted, the District Court certified for classwide

treatment plaintiffs’ claims regarding “UPS’s alleged 100%

healed policy,” “UPS’s allegedly discriminatory implementation

of its formal ADA compliance policy,” and “the allegedly

discriminatory use by UPS of uniform pretextual job

descriptions.” Hohider, 243 F.R.D. at 246. The court

concluded that, “with respect to [these three] class claims,

plaintiffs may seek appropriate equitable relief including

injunctive and declaratory relief and monetary damages

incidental to the requested injunctive or declaratory relief.” Id.

at 245. UPS raises numerous challenges to this grant of

certification, many of which stem from its contention that

adjudication of plaintiffs’ claims requires the court to assess

whether the named plaintiffs and the class members are

“qualified individuals with disabilities,” as defined under the

ADA. This assessment, according to UPS, would entail too

19

many individualized inquiries for class treatment to be

warranted.

The District Court recognized that inquiries necessary to

the “qualified individual with a disability” assessment could not

be adjudicated with respect to this class in a manner consistent

with Rule 23(a) and (b)(2), but found these inquiries did not

preclude certification of the claims and relief specified above.

Central to this conclusion was the court’s determination that

these claims could be tried under the “Teamsters framework,”

a two-stage method of proof promulgated by the Supreme Court

for adjudicating pattern-or-practice claims brought under Title

VII of the Civil Rights Act of 1964: according to the court,

“whether plaintiffs can proceed under the Teamsters pattern-or-

practice framework is key to the decision whether class

certification is appropriate in this case because it bears directly

on the elements of the prima facie case that plaintiffs will have

to prove at the liability stage of this litigation.” Id. at 192.

Relying on the Teamsters framework as it has been applied in

the Title VII context, the District Court found it could determine

whether UPS engaged in a pattern or practice of unlawful

discrimination, as contemplated at the “liability” stage of that

framework, without evaluating whether plaintiffs and class

members were “qualified” under the ADA. Accordingly, the

court concluded it need not consider this “qualified” standard,

and the individualized inquiries it would entail with respect to

the proposed class, in deciding whether the “liability” stage of

plaintiffs’ claims could be certified. As we discuss, however, in

this case it is not possible to reach a classwide determination of

Section 707(a) provides:8

Whenever the Attorney General has reasonable

cause to believe that any person or group of

persons is engaged in a pattern or practice of

resistance to the full enjoyment of any of the

rights secured by this subchapter, and that the

pattern or practice is of such a nature and is

intended to deny the full exercise of the rights

herein described, the Attorney General may bring

a civil action in the appropriate district court of

20

unlawful discrimination without undertaking analysis of

qualification, as it is defined by the ADA. Contrary to the

District Court’s conclusion, adopting the Teamsters method of

proof to adjudicate plaintiffs’ claims does not obviate the need

to consider the ADA’s statutory elements. We believe this error

in identifying the legal standard controlling plaintiffs’ claims

resulted in an improper grant of class certification.

III.

A.

At the outset, a brief review of the origins of the

Teamsters framework is in order. International Brotherhood of

Teamsters v. United States, 431 U.S. 324 (1977), presented an

employment discrimination suit brought by the United States

under § 707(a) of the Civil Rights Act of 1964, 42 U.S.C. §

2000e-6(a). The government alleged the employer engaged in8

the United States by filing with it a complaint (1)

signed by him (or in his absence the Acting

Attorney General), (2) setting forth facts

pertaining to such pattern or practice, and (3)

requesting such relief, including an application for

a permanent or temporary injunction, restraining

order or other order against the person or persons

responsible for such pattern or practice, as he

deems necessary to insure the full enjoyment of

the rights herein described.

42 U.S.C. § 2000e-6(a). As noted in Teamsters, § 707 has been

amended “to give the Equal Employment Opportunity

Commission, rather than the Attorney General, the authority to

bring ‘pattern or practice’ suits under that section against

private-sector employers.” 431 U.S. at 329 n.1.

In McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973),9

the Court found that

[t]he complainant in a Title VII trial must carry

the initial burden under the statute of establishing

a prima facie case of racial discrimination. This

21

a pattern or practice of employment discrimination prohibited

under Title VII. Teamsters, 431 U.S. at 329. In analyzing this

claim, the Supreme Court rejected the employer’s argument that

“the Government’s burden of proof in a pattern-or-practice case

must be equivalent to that outlined in McDonnell Douglas v.

Green.” Id. at 357. Noting that “[o]ur decision in [McDonnell9

may be done by showing (i) that he belongs to a

racial minority; (ii) that he applied and was

qualified for a job for which the employer was

seeking applicants; (iii) that, despite his

qualifications, he was rejected; and (iv) that, after

his rejection, the position remained open and the

employer continued to seek applicants from

persons of complainant’s qualifications.

Id. at 802. Once this prima facie case has been made, “[t]he

burden then must shift to the employer to articulate some

legitimate, nondiscriminatory reason for the employee’s

rejection.” Id. The complainant would then “be afforded a fair

opportunity to show that [the employer’s] stated reason for [the

complainant’s] rejection was in fact pretext.” Id. at 804.

22

Douglas] . . . did not purport to create an inflexible formulation”

for analyzing claims of discrimination under Title VII, the Court

looked to its previous decision in Franks v. Bowman

Transportation Co., 424 U.S. 747 (1976), which addressed a

class-action pattern-or-practice claim of race discrimination

under Title VII. Teamsters, 431 U.S. at 358–59. Drawing on

the method of proof it used in Franks to adjudicate the class’s

claims, the Court promulgated a two-stage framework for

analyzing Title VII pattern-or-practice suits. It defined the first

stage as follows:

The plaintiff in a pattern-or-practice action is the

Government, and its initial burden is to

23

demonstrate that unlawful discrimination has

been a regular procedure or policy followed by an

employer or group of employers. At the initial,

“liability” stage of a pattern-or-practice suit the

Government is not required to offer evidence that

each person for whom it will ultimately seek

relief was a victim of the employer’s

discriminatory policy. Its burden is to establish a

prima facie case that such a policy existed. The

burden then shifts to the employer to defeat the

prima facie showing of a pattern or practice by

demonstrating that the Government’s proof is

either inaccurate or insignificant. . . .

If an employer fails to rebut the inference

that arises from the Government’s prima facie

case, a trial court may then conclude that a

violation has occurred and determine the

appropriate remedy. Without any further

evidence from the Government, a court’s finding

of a pattern or practice justifies an award of

prospective relief. Such relief might take the

form of an injunctive order against continuation

of the discriminatory practice, an order that the

employer keep records of its future employment

decisions and file periodic reports with the court,

or any other order “necessary to ensure the full

enjoyment of the rights” protected by Title VII.

Id. at 360–61 (citation omitted). To establish liability for a

24

pattern or practice of unlawful discrimination, “the Government

ultimately ha[s] to prove more than the mere occurrence of

isolated or ‘accidental’ or sporadic discriminatory acts. It ha[s]

to establish by a preponderance of the evidence that [the

alleged] discrimination was the company’s standard operating

procedure—the regular rather than the unusual practice.” Id. at

336. The Court emphasized that “at the liability stage of a

pattern-or-practice trial the focus often will not be on individual

hiring decisions, but on a pattern of discriminatory

decisionmaking. While a pattern might be demonstrated by

examining the discrete decisions of which it is composed, the

Government’s suits have more commonly involved proof of the

expected result of a regularly followed discriminatory policy.”

Id. at 360–61 n.46.

The second, “remedial” stage of the Teamsters

framework pertains to individual relief, and is reached only after

liability is established in the first stage of analysis:

When the Government seeks individual

relief for the victims of the discriminatory

practice, a district court must usually conduct

additional proceedings after the liability phase of

the trial to determine the scope of individual

relief. . . . [T]he question of individual relief does

not arise until it has been proved that the

employer has followed an employment policy of

unlawful discrimination. The force of that proof

does not dissipate at the remedial stage of the

If the employer offers a nondiscriminatory justification for10

its conduct, that justification “will be subject to further evidence

by the Government that the purported reason for an applicant’s

rejection was in fact a pretext for unlawful discrimination.”

Teamsters, 431 U.S. at 362 n.50 (citing McDonnell Douglas,

411 U.S. at 804–06).

25

trial. The employer cannot, therefore, claim that

there is no reason to believe that its individual

employment decisions were discriminatorily

based; it has already been shown to have

maintained a policy of discriminatory

decisionmaking.

The proof of the pattern or practice

supports an inference that any particular

employment decision, during the period in which

the discriminatory policy was in force, was made

in pursuit of that policy. The Government need

only show that an alleged individual

discriminatee unsuccessfully applied for a job and

therefore was a potential victim of the proved

discrimination. As in Franks, the burden then

rests on the employer to demonstrate that the

individual applicant was denied an employment

opportunity for lawful reasons.

Id. at 361–62 (footnote omitted). According to the Court, this10

26

inference of discrimination in favor of the individual employee

at the second stage of proceedings is an appropriate

consequence of the liability determination at the first Teamsters

stage because, inter alia, “the finding of a pattern or practice [of

unlawful discrimination] change[s] the position of the employer

to that of a proved wrongdoer.” Id. at 359–60 n.45.

In Cooper v. Federal Reserve Bank of Richmond, 467

U.S. 867 (1984), the Court noted that “[a]lthough Teamsters

involved an action litigated on the merits by the Government as

plaintiff under § 707(a) of [the Civil Rights Act of 1964], it is

plain that the elements of a prima facie pattern-or-practice case

are the same in a private class action.” Id. at 876 n.9. The

Cooper Court observed that, under this two-stage framework,

“[w]hile a finding of a pattern or practice of discrimination itself

justifies an award of prospective relief to the class, additional

proceedings are ordinarily required to determine the scope of

individual relief for the members of the class.” Id. at 876 (citing

Teamsters, 431 U.S. at 361). The Court elaborated on the

distinction between an individual claim of discrimination

adjudicated under the McDonnell Douglas framework, where

the focus is on uncovering “the reason for a particular

employment decision,” and a class-based pattern-or-practice

claim under the Teamsters framework, which focuses at the

“liability” stage not “‘on individual hiring decisions, but on a

pattern of discriminatory decisionmaking.’” Id. (quoting

Teamsters, 431 U.S. at 360 n.46). Thus, in the class context,

“the existence of a valid individual claim does not necessarily

warrant the conclusion that the individual plaintiff may

Since Cooper, courts of appeals have used the Teamsters11

two-stage framework to analyze pattern-or-practice claims

brought as private-plaintiff class actions under Title VII, see,

e.g., Robinson v. Metro-North Commuter R.R. Co., 267 F.3d

147, 158–60 (2d Cir. 2001); Allison v. Citgo Petroleum Corp.,

151 F.3d 402, 409 (5th Cir. 1998), as well as under other

statutes such as the Employee Retirement Income Security Act,

see Gavalik v. Cont’l Can Co., 812 F.2d 834, 852–65 (3d Cir.

1987).

No court of appeals has addressed directly if and how this

framework might apply to a private-plaintiff pattern-or-practice

class action under the ADA, though some have touched upon the

issue in passing. In Bates v. UPS, 511 F.3d 974 (9th Cir. 2007)

(en banc), the Court of Appeals for the Ninth Circuit reviewed

a district court’s treatment of an ADA private-plaintiff class

action under the Teamsters pattern-or-practice framework. The

Ninth Circuit concluded that applying Teamsters in that case

was unnecessary, because “[t]he fact to be uncovered by such a

[burden-shifting] protocol—whether the employer made an

employment decision on a proscribed basis (here, disability in

the form of hearing impairment)—[wa]s not in dispute.” Id. at

988. Thus, while the Ninth Circuit declined to apply Teamsters,

27

successfully maintain a class action,” just as “a class plaintiff’s

attempt to prove the existence of a companywide policy . . . may

fail even though discrimination against one or two individuals

has been proved.” Id. at 877–78 (drawing on Falcon, 457 U.S.

147).11

it did not disavow it as an appropriate framework to apply when

the existence of the alleged discriminatory policy is in question,

as it is here.

In Davoll v. Webb, 194 F.3d 1116 (10th Cir. 1999), the

Court of Appeals for the Tenth Circuit affirmed the district

court’s decision to permit the government to go forward with an

ADA pattern-or-practice claim under the Teamsters framework,

stating that “Teamsters sets forth a logical and efficient

framework for allocating burdens of proof in pattern and

practice employment discrimination suits, and we approve of the

district court’s use of that framework in this case.” Id. at 1148.

The Tenth Circuit also affirmed the district court’s denial of

certification to the private class of plaintiffs seeking to bring the

same substantive claims as the government. The district court

had found that determining whether class members were

“disabled” under the ADA would require “‘necessarily

individualized inquiries’ [that] are best suited to a case-by-case

determination” and that rendered the class uncertifiable. Davoll

v. Webb, 160 F.R.D. 142, 146 (D. Colo. 1995) (quoting

Chandler v. City of Dallas, 2 F.3d 1385, 1396 (5th Cir. 1993)).

The Tenth Circuit noted that, unlike the plaintiffs’ class suit, “a

pattern and practice action brought by the United States pursuant

to section 707 of Title VII, 42 U.S.C. § 2000e-6, is not subject

to the requirements of Fed. R. Civ. P. 23.” Davoll, 194 F.3d at

1147 n.20 (citing Gen. Tel. Co. of Nw. v. EEOC, 446 U.S. 318,

327 & n.9 (1980)). Nonetheless, the court also noted that “[w]e

understand plaintiffs’ concern that by denying their class

28

certification motion and upholding the United States pattern and

practice action, this decision may be interpreted as holding that

only the government can bring a class-wide ADA employment

suit. Such an interpretation would be unfounded.” Id. at 1146

n.20.

The ADA incorporates by reference 42 U.S.C. § 2000e-12

6(a), the provision, noted supra, that authorizes the government

to bring pattern-or-practice suits under Title VII. See ADA, 42

U.S.C. § 12117(a) (“The powers, remedies, and procedures set

forth in sections 2000e-4, 2000e-5, 2000e-6, 2000e-8, and

2000e-9 of this title shall be the powers, remedies, and

procedures this subchapter provides to the Commission, to the

Attorney General, or to any person alleging discrimination on

the basis of disability in violation of any provision of this

chapter . . . .”).

29

B.

The District Court reviewed the Franks, Teamsters, and

Cooper decisions, and concluded their framework for analyzing

a Title VII pattern-or-practice claim is properly applied to a

private-plaintiff class action brought under the ADA.

According to the court, “[t]his result is compelled by the

Supreme Court’s decisions [in those three cases] and because

the ADA incorporates the remedies afforded to plaintiffs

litigating claims pursuant to Title VII.” Hohider, 243 F.R.D.12

at 208. The court found “no legal authority supporting a

categorical prohibition against litigating ADA claims pursuant

30

to a Rule 23(b)(2) class action utilizing [the Teamsters]

framework.” Id. at 205. It reviewed the sparse appellate case

law that has touched upon this issue and concluded those cases

supported, or were at least consistent with, the application of

this framework to plaintiffs’ claims. Accordingly, the court

adopted the Teamsters framework, and proposed the following

method for its application to the class:

Plaintiffs . . . will be allowed to litigate their

pattern-or-practice claims for injunctive relief

pursuant to the elements of a prima facie case set

forth in Teamsters and will not be required to

make out the elements for an individual ADA

claim if some or all of their claims are certified

for declaratory and injunctive relief. Here,

plaintiffs to establish a prima facie case of a

pattern or practice that is discriminatory under the

ADA must show at the initial liability stage that

such a policy existed—not that each person for

whom they are seeking relief was a victim of the

allegedly discriminatory policy. If plaintiffs do

so, the burden then shifts to defendant to defeat

this prima facie case. If defendant fails to rebut

this prima facie case that a discriminatory policy

existed, broad-based prospective injunctive or

declaratory relief may be warranted. If plaintiffs

are permitted to seek individual relief, the court

may need to conduct additional proceedings with

respect to the scope of individual relief.

The District Court did not make clear whether this second13

Teamsters stage would occur with respect to this class, and if so,

how it would proceed. Analogizing to Teamsters, the court did

note that a finding of liability at the first stage would result in

the following burdens and presumptions for each party during

whatever individual-relief proceedings may follow:

If plaintiffs in this case seek individual

relief for class members in this class action . . .

who can show they attempted to return to work

with or without an accommodation and if there is

a finding of liability, those individuals arguably

will be entitled to a presumption, which UPS can

rebut, that they have been discriminated against.

The burden will be on UPS to show that those

individuals are not entitled to individual relief; for

example, by demonstrating that an individual

could not perform a job even with an

accommodation. On the other hand, with respect

to . . . those employees who were absent from

31

Id. at 208 (footnote omitted). The court found that, “under the

pattern-or-practice framework, at the initial liability stage,

plaintiffs need not prove that each member of the class was a

qualified individual with a disability or individually entitled to

reasonable accommodation.” Id. at 229. Rather, “the individual

elements of a reasonable accommodation claim may be relevant

at the second, remedial stage of proceedings if plaintiffs seek

individual relief on behalf of individual class members.” Id.13

work due to medical reasons and did not attempt

to return to work or otherwise seek an

accommodation, the burden arguably will be on

the individual to show that he or she was capable

of working with or without an accommodation

and that he or she would have attempted to return

to work. . . . It is not clear at this time whether the

class was intended to not only include individuals

who in fact attempted to return to work, but also

to include those employees who did not attempt to

return to work. At the remedial stage in the

proceedings if it has been determined that UPS

has a discriminatory policy in violation of the

ADA, the parties will need to brief whether those

who did not attempt to return to work are akin to

nonapplicants as contemplated by Teamsters and

should be included as members of the class. In

other words, it will need to be determined whether

the “applicant” versus “nonapplicant” distinction

is actually implicated in this case.

Hohider, 243 F.R.D. at 200.

32

at 208 n.69; see also id. at 200 (suggesting inquiries into

whether class members are qualified, including whether they

can or need to be reasonably accommodated, would occur at the

At certain points in its analysis, the District Court suggested14

that whether plaintiffs were “qualified” under the ADA may be

relevant to its certification determination. See, e.g., Hohider,

243 F.R.D. at 206 (“Bates is instructive for this case . . . to the

extent that it is an example of a private-plaintiff Rule 23(b)(2)

ADA class action and to the extent that it recognized that, in

such cases, to maintain a class action, the named plaintiffs

needed to establish that at least one named plaintiff was

‘qualified’ in order to have statutory standing to bring a lawsuit

under the ADA.” (footnote omitted)); id. at 229 (recognizing

that “[s]ome courts . . . have required named plaintiffs—at least

in order to have standing to assert an ADA claim alleging an

illegal policy and to represent the class adequately—to establish

that they are qualified individuals within the meaning of the

ADA at the certification stage”). The court, however, does not

appear to have undertaken the inquiry. See id. at 218 n.82

(declining to address whether plaintiffs are “qualified” in its

Rule 23(a) commonality discussion, because “[a]t the class

certification stage, this issue really goes to the named plaintiffs’

typicality and adequacy to represent the class and to the

appropriateness of individual relief” and thus “will be addressed

in more detail” later in the analysis); id. at 226 (declining to

address “[t]he question whether plaintiffs are qualified

individuals under the ADA” in its typicality discussion, as that

question “more directly affects plaintiffs’ adequacy as class

representatives”); id. at 229–30 (reciting, in its Rule 23(a)

33

second Teamsters stage). 14

adequacy-of-representation discussion, evidence regarding

plaintiffs’ status as “disabled” under the ADA and finding,

without discussion of plaintiffs’ status as “qualified,” “that the

evidence is sufficient for the court to determine for the purposes

of certification that plaintiffs are adequate to bring this lawsuit

and have statutory standing to sue under the ADA”).

34

The court recognized that, in the present case, some of

these “individual elements of a reasonable accommodation

claim” are not suitable for class treatment, as their resolution

would require inquiries too individualized and divergent with

respect to this class to meet the requirements of Rule 23. See id.

at 191 (noting “th[e] issue ‘whether a reasonable

accommodation is possible’ cuts against certification under the

Rule 23(a) prerequisites of commonality and typicality as well

as the Rule 23(b)(2) requirement that the defendant treated the

proposed class members on grounds generally applicable to the

class”). By the court’s analysis, however, these individualized

inquiries could be delayed until the second, “remedial” stage of

the Teamsters framework, and thus would not obstruct

certification of the first, “liability” stage, which would require

only proof of the existence of the alleged policies as UPS’s

“standard operating procedure.” See, e.g., id. at 231 (“It is

sufficient in order to certify a class pursuant to Rule 23(b)(2) for

the court to find that either UPS has acted on grounds generally

applicable to the class by engaging in the alleged de facto 100%

healed policy or by not engaging in the alleged de facto 100%

healed policy; by implementing its formal ADA compliance

35

procedures in violation of the ADA, or by implementing them in

compliance with it; or by creating job classifications that are

designed without regard to essential job functions to preclude

anyone from returning to work who could not lift seventy

pounds, or by creating job classifications that are designed with

regard to essential job functions.”). Accordingly, the court

identified which of plaintiffs’ claims were premised on policies

whose existence could be proven on a classwide basis, see, e.g.,

id. at 222–23, and certified the class to pursue nonindividualized

relief with respect to those claims. See id. at 245 (“[W]ith

respect to the class claims, plaintiffs may seek appropriate

equitable relief including injunctive and declaratory relief and

monetary damages incidental to the requested injunctive or

declaratory relief. Plaintiffs, therefore, may be able to seek

back pay or other equitable relief for individual class members

if there is a protocol for identifying those monetary damages

which sets forth the objective standards to be utilized in

determining the amount of those damages in a way that does not

require additional hearings on individualized circumstances.”).

C.

The parties dispute whether the Teamsters evidentiary

framework is properly applied to the present case. This dispute

comprises two inquiries: whether the Teamsters framework, as

a general matter, can be imported from the Title VII context in

which it was promulgated and applied to pattern-or-practice

claims raised under the ADA; and if so, whether plaintiffs’

claims, when analyzed with this framework in mind, can be

36

certified for class treatment.

If we assume, as plaintiffs contend and the District Court

found, that in light of 42 U.S.C. § 12117(a) and Title VII

jurisprudence, the Teamsters framework can be used to analyze

pattern-or-practice claims brought as private-plaintiff class

actions under the ADA, this does not, in itself, resolve whether

the class action before us can go forward under the Teamsters

framework in a manner consistent with Rule 23. The Teamsters

framework was judicially promulgated as a method of proof for

pattern-or-practice claims brought by the government under

Title VII, as that statute authorizes—it provides a means by

which courts can assess whether a particular form of statutorily

prohibited discrimination exists, just as the McDonnell Douglas

framework does for individual claims of disparate treatment.

And, like the McDonnell Douglas framework, its importance

“lies, not in its specification of the discrete elements of proof

there required, but in its recognition of the general principle that

any Title VII plaintiff must carry the initial burden of offering

evidence adequate to create an inference that an employment

decision was based on a discriminatory criterion illegal under

the Act.” Teamsters, 431 U.S. at 358; see Bates v. UPS, 511

F.3d 974, 988 (9th Cir. 2007) (en banc) (finding that the

“burden-shifting protocol [of Teamsters] is . . . unnecessary”

when “[t]he fact to be uncovered by such a protocol—whether

the employer made an employment decision on a proscribed

basis . . . —is not in dispute,” and noting that the protocol, when

used to resolve this fact, becomes “moot after trial” and does not

substantively bear on a reviewing court’s assessment of

37

“whether the evidence presented at trial supports a finding of

liability”); see also, e.g., U.S. Postal Serv. Bd. of Governors v.

Aikens, 460 U.S. 711, 715 (1983) (“The prima facie case

method established in McDonnell Douglas was never intended

to be rigid, mechanized, or ritualistic. Rather, it is merely a

sensible, orderly way to evaluate the evidence in light of

common experience as it bears on the critical question of

discrimination. Where the defendant has done everything that

would be required of him if the plaintiff had properly made out

a prima facie case, whether the plaintiff really did so is no

longer relevant. The district court has before it all the evidence

it needs to decide whether the defendant intentionally

discriminated against the plaintiff.” (internal quotation marks

and citations omitted)); Dillon v. Coles, 746 F.2d 998, 1003 (3d

Cir. 1984) (“The McDonnell Douglas formula is a tool that

enables the trial judge to sift through the evidence in an orderly

fashion to determine the ultimate question in the case—did the

defendant intentionally discriminate against the plaintiff. The

presumptions and the shifting burdens are merely an aid in

making that determination; they are not ends in themselves.”

(citation omitted)).

Thus, the Teamsters framework might assist a court’s

analysis of whether a defendant has engaged in a pattern or

practice of discrimination prohibited under Title VII and, if so,

to whom relief should be awarded. It is Title VII, however, that

defines the scope of prohibited discrimination and sets the

substantive boundaries within which the method of proof must

operate. So too with the ADA. Even if the Teamsters

38

framework is recognized as an acceptable method of proof for

pattern-or-practice claims under the ADA, this determination

would not, by its own force, affect what patterns or practices

constitute discrimination prohibited by the statute. Nor would

the framework, once adopted, independently dictate what

substantive elements must meet the requirements of Rule 23 in

order to reach a classwide finding of unlawful discrimination

under that statute.

Here, the District Court adopted the Teamsters

framework to analyze plaintiffs’ ADA claims, and concluded it

could certify three of those claims for class treatment under the

first, “liability” stage of that framework. See Hohider, 243

F.R.D. at 208, 245. The court determined that, if plaintiffs are

able to prove the existence of the policies alleged in those

claims as UPS’s “standard operating procedure,” such proof,

with nothing more, would be sufficient to establish that UPS

engaged in a classwide pattern or practice of discrimination

prohibited under the ADA. See, e.g., id. at 231–32. The court

found that the individualized inquiries with respect to the class

could be delayed until the second Teamsters stage of

proceedings, which is devoted to questions of individual relief,

and would be unnecessary to the determinations made at the

first Teamsters stage. See id. at 229, 208 n.69 (“[U]nder the

pattern-or-practice framework, at the initial liability stage,

plaintiffs need not prove that each member of the class was a

qualified individual with a disability or individually entitled to

reasonable accommodation,” though “the individual elements

of a reasonable accommodation claim may be relevant at the

39

second, remedial stage of proceedings if plaintiffs seek

individual relief on behalf of individual class members.”). By

the court’s analysis, because the existence of the policies can be

adjudicated on a classwide basis and plaintiffs need not prove

anything else to reach, at the first Teamsters stage, a finding of

liability and relief with respect to the class, the claims alleging

discrimination as a result of these policies may be certified

under Rule 23(a) and (b)(2).

The Teamsters framework alone, however, does not

justify this conclusion. Under this framework, plaintiffs would

have the burden of proving that UPS has adopted, as its

“standard operating procedure,” a pattern or practice of

discrimination prohibited under the ADA, see Teamsters, 431

U.S. at 336, and, if they carry this burden, the class would be

entitled to a finding of liability and relief. See id. at 361

(“Without any further evidence from the Government, a court’s

finding of a pattern or practice justifies an award of prospective

relief.”); Cooper, 467 U.S. at 876. The focus at this first stage

of proof is generally not “on individual hiring decisions, but on

a pattern of discriminatory decisionmaking,” Teamsters, 431

U.S. at 360 n.46, and “the question of individual relief does not

arise until [the second Teamsters stage, after] it has been proved

[at the first stage] that the employer has followed an

employment policy of unlawful discrimination.” Id. at 361; see

Cooper, 467 U.S. at 876.

That the existence of the policies alleged by plaintiffs can

be adjudicated on a classwide basis, however, does not mean

40

that these policies, if proven to exist, would amount to a

classwide showing of unlawful discrimination under the ADA.

And that the Teamsters framework contemplates a second stage

of proceedings where questions of individual relief may be

addressed, does not mean that all individualized inquiries with

respect to a given class can be delayed until that stage. Instead,

it is necessary to look to the ADA, the statutory basis for

plaintiffs’ claims, to assess what elements must be demonstrated

for the court to reach, at the first Teamsters stage, a

determination of unlawful discrimination and a finding of

classwide liability and relief. If those elements include

individualized inquiries that cannot be addressed in a manner

consistent with Rule 23, then the class cannot be certified. As

noted in Cooper, the elements necessary to establish a pattern or

practice of unlawful discrimination on behalf of a class may not

mirror those necessary to establish a valid individual claim of

discrimination, see 467 U.S. at 877–78, and so the fact that

individualized inquiries might preclude certification of class

members’ various individual claims of relief is not necessarily

dispositive of whether that class’s pattern-or-practice claim

satisfies Rule 23. It is the ADA, however, and not the

Teamsters evidentiary framework, that controls the substantive

assessment of what elements must be determined to prove a

pattern or practice of unlawful discrimination in this case. See

Tellabs, Inc. v. Makor Issues & Rights, Ltd., 127 S. Ct. 2499,

2512 (2007) (“Congress, as creator of federal statutory claims,

. . . has power to determine what must be proved to prevail on

the merits.”); cf. Gross v. FBL Fin. Servs., Inc., No. 08-441, slip

41

op. at 7, 8–9 n.3 (June 18, 2009) (noting that, in “decid[ing]

whether [the Age Discrimination in Employment Act of 1967

(ADEA)] authorizes a mixed-motives age discrimination claim,”

“[o]ur inquiry . . . must focus on the text of the ADEA,” and

rejecting the notion that the Court may recognize such a claim

merely because it may believe “there is ‘nothing unfair or

impractical’ about hinging liability on whether ‘forbidden

motive . . . play[ed] a role in the employer’s decision,’” as “that

is a decision for Congress to make” and “[w]e must give effect

to Congress’ choice” (quoting id., slip op. at 2–3 (Breyer, J.,

dissenting))). We believe the District Court’s certification

analysis loses sight of this point. See, e.g., Hohider, 243 F.R.D.

at 155 (“The court ultimately concludes . . . that . . . plaintiffs’

claims are subject to the [Teamsters] pattern-or-practice

framework of proof . . . , which does not require an

individualized inquiry at the liability stage adjudicating whether

a company-wide policy is unlawful under the discrimination

statutes . . . .”); id. at 208 (“[T]his court concludes that plaintiffs

in this case are not barred from proceeding pursuant to the

pattern-or-practice framework set forth in Teamsters because

they are private plaintiffs or because they are litigating claims

pursuant to the ADA and not Title VII. Plaintiffs, therefore,

will be allowed to litigate their pattern-or-practice claims for

injunctive relief pursuant to the elements of a prima facie case

set forth in Teamsters and will not be required to make out the

elements for an individual ADA claim if some or all of their

claims are certified for declaratory and injunctive relief.”); id.

at 226 n.91 (“Defendant’s arguments that individualized issues

42

predominate and each named plaintiff’s claim implicates unique

defenses fail in light of the court’s finding that plaintiffs can

litigate these claims challenging alleged company-wide policies

pursuant to the [Teamsters] pattern-or-practice framework.”).

To the extent the District Court relied upon the Teamsters

method of proof to reach a certification decision incompatible

with the substantive requirements of the ADA, it abused its

discretion. See Oscar Private Equity, 487 F.3d at 264 (“A

district court that premises its legal analysis on an erroneous

understanding of the governing law has abused its discretion.”);

see also Rules Enabling Act, 28 U.S.C. § 2072(b) (prohibiting

the use of federal rules of practice and procedure, including the

class action mechanism provided for by Rule 23, to “abridge,

enlarge or modify any substantive right”); Ortiz v. Fibreboard

Corp., 527 U.S. 815, 845 (1999); Amchem Prods., Inc. v.

Windsor, 521 U.S. 591, 612–13 (1997).

IV.

Having reviewed plaintiffs’ claims in light of the

substantive requirements of the ADA, we find those claims

cannot be adjudicated within the parameters of Rule 23 such

that a determination of classwide liability and relief can be

reached. Rather, establishing the unlawful discrimination

alleged by plaintiffs would require determining whether class

members are “qualified” under the ADA, an assessment that

encompasses inquiries acknowledged by the District Court to be

too individualized and divergent with respect to this class to

warrant certification under Rule 23(a) and (b)(2). Contrary to

43

the court’s determination otherwise, the Teamsters framework

cannot, by its own force, cure this flaw in the class.

Accordingly, the court’s grant of class certification was an

abuse of discretion.

A.

Title I of the ADA provides, as a general rule, that “[n]o

covered entity shall discriminate against a qualified individual

with a disability because of the disability of such individual in

regard to job application procedures, the hiring, advancement,

or discharge of employees, employee compensation, job

training, and other terms, conditions, and privileges of

employment.” 42 U.S.C. § 12112(a). A “qualified individual

with a disability” is defined as “an individual with a disability

who, with or without reasonable accommodation, can perform

the essential functions of the employment position that such

individual holds or desires.” Id. § 12111(8).

Title I enumerates specific examples of conduct that

would constitute discrimination prohibited under the statute.

See id. § 12112(b). The three class claims that have been

certified, according to the District Court, all “implicate the

[ADA’s] prohibition against discrimination in the form of

failure to make reasonable accommodations.” Hohider, 243

F.R.D. at 187. Namely, the ADA specifies that one way a

covered entity can engage in unlawful discrimination under the

statute is by

(A) not making reasonable accommodations to

As the District Court noted, plaintiffs “characterize each of15

their reasonable accommodation policies claims as pattern-or-

practice variants of a ‘failure to make a reasonable

accommodation’ claim that an individual plaintiff could bring

under the ADA in an individual lawsuit. These claims challenge

UPS’s alleged company-wide policies of non-accommodation

in violation of the ADA.” Hohider, 243 F.R.D. at 154. The

court did not address whether these claims can be understood as

falling under another discrimination provision under the ADA

and, on appeal, the parties do not dispute this characterization of

the claims.

44

the known physical or mental limitations of an

otherwise qualified individual with a disability

who is an applicant or employee, unless such

covered entity can demonstrate that the

accommodation would impose an undue hardship

on the operation of the business of such covered

entity; or (B) denying employment opportunities

to a job applicant or employee who is an

otherwise qualified individual with a disability, if

such denial is based on the need of such covered

entity to make reasonable accommodation to the

physical or mental impairments of the employee

or applicant.

42 U.S.C. § 12112(b)(5)(A)–(B). 15

In construing § 12112(b)(5), we have held that, for a

45

covered entity to be found liable for discrimination on the basis

of failure to accommodate, the plaintiff must prove “‘(1) he is

a disabled person within the meaning of the ADA; (2) he is

otherwise qualified to perform the essential functions of the job,

with or without reasonable accommodations by the employer;

and (3) he has suffered an otherwise adverse employment

decision as a result of discrimination’ . . . [which] in this context

include[s] refusing to make reasonable accommodations for a

plaintiff’s disabilities.” Williams v. Phila. Housing Auth. Police

Dep’t, 380 F.3d 751, 761 (3d Cir. 2004) (quoting Taylor v.

Phoenixville Sch. Dist., 184 F.3d 296, 306 (3d Cir. 1999)). We

have also recognized that, although the ADA itself does not

mention an “interactive process” with respect to reasonable

accommodations,

[t]he ADA’s regulations state that: “To determine

the appropriate reasonable accommodation it may

be necessary for the covered entity to initiate an

informal, interactive process with the qualified

individual with a disability in need of

accommodation. This process should identify the

precise limitations resulting from the disability

and the potential reasonable accommodations that

could overcome those limitations.” 29 C.F.R. §

1630.2(o)(3). Similarly, the EEOC’s interpretive

guidelines provide that: “Once a qualified

individual with a disability has requested

provision of a reasonable accommodation, the

employer must make a reasonable effort to

46

determine the appropriate accommodation. The

appropriate reasonable accommodation is best

determined through a flexible, interactive process

that involves both the employer and the qualified

individual with a disability.” 29 C.F.R. Pt. 1630,

App. § 1630.9 at 359.

Taylor, 184 F.3d at 311 (alterations in original omitted); see

Williams, 380 F.3d at 771. In handling a disabled employee’s

request for a reasonable accommodation, “both parties

[employers and employees] have a duty to assist in the search

for appropriate reasonable accommodation and to act in good

faith.” Taylor, 184 F.3d at 312 (quoting Mengine v. Runyon,

114 F.3d 415, 420 (3d Cir. 1997)). “The interactive process

does not dictate that any particular concession must be made by

the employer; nor does the process remove the employee’s

burden of showing that a particular accommodation rejected by

the employer would have made the employee qualified to

perform the job’s essential functions. All the interactive process

requires is that employers make a good-faith effort to seek

accommodations.” Id. at 317 (citation omitted). Accordingly,

we have found that

[a]n employee can demonstrate that an employer

breached its duty to provide reasonable

accommodations because it failed to engage in

good faith in the interactive process by showing

that: “1) the employer knew about the employee’s

disability; 2) the employee requested

According to the court, 16

[plaintiffs’] reasonable accommodation policies

claims can be further distinguished [from one

another]. Plaintiffs’ principal allegation appears

to be that UPS enforces an unwritten, de facto

“100% healed” return-to-work policy (the “100%

healed policy claim”). Plaintiffs argue that the

100% healed policy claim, if proven, constitutes

a per se violation of the ADA’s requirements

47

accommodations or assistance for his or her

disability; 3) the employer did not make a good

faith effort to assist the employee in seeking

accommodations; and 4) the employee could have

been reasonably accommodated but for the

employer’s lack of good faith.”

Williams, 380 F.3d at 772 (quoting Taylor, 184 F.3d at 319–20);

see also Jones v. UPS, 214 F.3d 402, 408 (3d Cir. 2000)

(quoting the same test from Taylor for what “a disabled

employee must demonstrate” “to show that an employer has

violated its duty to engage in the interactive process”). Under

the theory of liability advanced by plaintiffs and certified by the

District Court, the policies alleged in plaintiffs’ claims, if

proven to exist, evidence UPS’s “systematic failures to engage

in the mandatory interactive process in good faith and to make

reasonable accommodations,” Pls.’ Br. 3 (citing Hohider &

DiPaolo Compl. ¶¶ 4, 6–7, 11; Branum Compl. ¶¶ 13,

15–16) —a violation of UPS’s obligation, as a covered entity16

relating to the making of reasonable

accommodations. That is, plaintiffs argue that at

the merits stage of this litigation, with respect to

the 100% healed policy claim, if plaintiffs prove

the existence of the alleged 100% healed policy,

the policy could be declared unlawful and

appropriate injunctive and declaratory relief could

flow from that determination. Plaintiffs’ other

reasonable accommodation policies claims appear

primarily to be alleging violations of the ADA as

a result of the implementation of those policies

and not as per se violations.

Hohider, 243 F.R.D. at 153.

Plaintiffs also assert UPS’s policies, if proven to exist,17

would demonstrate that UPS “regards as disabled” all

individuals against whom those policies are applied, thereby

proving “disability” under the ADA on a classwide basis. See

ADA, 42 U.S.C. § 12102(1) (defining “[t]he term ‘disability’ .

. . with respect to an individual” as “(A) a physical or mental

impairment that substantially limits one or more of the major life

activities of such individual; (B) a record of such an impairment;

or (C) being regarded as having such an impairment”). We held

in Williams that “‘regarded as’ employees under the ADA are

entitled to reasonable accommodation in the same way as are

those who are actually disabled.” 380 F.3d at 775.

48

under the ADA, to reasonably accommodate otherwise qualified

individuals with disabilities.17

We note that, during the pendency of this appeal, the

ADA Amendments Act of 2008 (ADAAA) was signed into law,

becoming effective January 1, 2009. See Pub. L. No. 110-325,

§ 8, 122 Stat. 3553, 3559 (to be codified at 29 U.S.C. § 705

note). The ADAAA amends the ADA in important respects,

particularly with regard to the definition and construction of

“disability” under the statute. For instance, while the general

definition of “disability” in 42 U.S.C. § 12102(1) retains largely

the same language, the ADAAA adds a provision addressing the

intended scope of the “regarded as” prong of that definition. It

specifies that “[a]n individual meets the requirement of ‘being

regarded as having such an impairment’ if the individual

establishes that he or she has been subjected to an action

prohibited under this Act because of an actual or perceived

physical or mental impairment whether or not the impairment

limits or is perceived to limit a major life activity.” Pub. L. No.

110-325, § 4(a), 122 Stat. at 3555 (to be codified at 42 U.S.C. §

12102(3)(A)); see also id. (to be codified at 42 U.S.C. §

12102(3)(B)) (“[The ‘regarded as’ prong of § 12102(1)] shall

not apply to impairments that are transitory and minor. A

transitory impairment is an impairment with an actual or

expected duration of 6 months or less.”). The ADAAA also

makes clear that “[a] covered entity under [Title I of the ADA]

. . . need not provide a reasonable accommodation or a

reasonable modification to policies, practices, or procedures to

an individual who meets the definition of disability in [§

12102(1)] solely under [the ‘regarded as’ prong] of such

49

section.” Id. § 6(a)(1), 122 Stat. at 3558 (to be codified at 42

U.S.C. § 12201(h)).

The parties dispute the applicability and effect of the

ADAAA with respect to the class certified by the District Court.

Plaintiffs contend the class claims should be evaluated under the

ADA as amended by the ADAAA, and that these amendments

only make the claims more amenable to class treatment. UPS

objects to such application of the ADAAA as impermissibly

retroactive. Furthermore, UPS contends the ADAAA eliminates

any entitlement to reasonable accommodation that plaintiffs

asserting “disability” under the ADA solely under the “regarded

as” prong may have previously enjoyed. See id. Thus,

according to UPS, if the ADAAA were found to apply, its

amendments would effectively remove any claim to relief the

class may have had.

In light of our analysis infra, we need not reach this

dispute. As we will discuss, plaintiffs’ inability to demonstrate

on a classwide basis that all class members are “qualified” under

the ADA renders certification of the class improper. The

ADAAA is silent as to this statutory element, neither removing

it nor otherwise purporting to amend its definition or

construction. See, e.g., id. § 5(a), 122 Stat. at 3557 (to be

codified at 42 U.S.C. § 12112) (amending § 12112(a) and (b)’s

prohibition of discrimination against a “qualified individual with

a disability because of the disability of such individual” to

prohibit discrimination against a “qualified individual on the

basis of disability”). Accordingly, even if we were to apply the

50

ADAAA to plaintiffs’ claims in the manner they desire, it would

not affect our determination that the class was improperly

certified. As such, we decline to resolve whether the ADAAA

and its amendments apply to plaintiffs’ claims. For the sake of

consistency with the District Court’s analysis, we have cited to

the pre-ADAAA version of the ADA in our analysis. This does

not reflect any determination regarding the applicability of the

ADAAA to plaintiffs’ claims.

51

B.

As the District Court recognized, were the liability

standards outlined above to control the adjudication of

plaintiffs’ claims, class certification would be improper. For a

plaintiff to be “qualified” under the ADA, he “must ‘satisf[y]

the prerequisites for the position, such as possessing the

appropriate educational background, employment experience,

skills, licenses, etc.’ and, [he] must be able to ‘perform the

essential functions of the position held or desired, with or

without reasonable accommodations.’” Taylor, 184 F.3d at 311

(first alteration in original) (quoting Gaul v. Lucent Techs. Inc.,

134 F.3d 576, 580 (3d Cir. 1998)). The class, as defined,

contains no unifying or limiting criteria—with respect to

employment positions held or desired, for instance, or

conditions suffered, or accommodations sought—that

potentially would permit classwide evaluation of whether each

member of the class is “qualified” and thus can perform the

52

essential functions of a given job with or without reasonable

accommodation. Nor does proof of the existence of the policies

alleged in plaintiffs’ claims resolve these inquiries. Rather,

analysis of the ADA’s “qualified” standard, if necessary to a

determination of classwide liability against UPS, would render

plaintiffs’ claims unsuitable for certification under Rule 23(a)

and (b)(2). See Hohider, 243 F.R.D. at 191.

The District Court found, however, that it could

adjudicate plaintiffs’ claims and reach a finding of classwide

liability and relief without undertaking individualized inquiries

into qualification (and thus reasonable accommodation) with

respect to the class. As discussed, the court premised this

determination on its adoption of the Teamsters evidentiary

framework. According to the court, “the trilogy of decisions

comprised of Franks, Teamsters, and Cooper makes clear that

the elements of proof for plaintiffs proceeding to litigate class

claims alleging a pattern or practice of discrimination pursuant

to the Teamsters framework are distinct from the elements of

proof in an individual discrimination case.” Id. at 204. Since

“[p]laintiffs . . . will be allowed to litigate their pattern-or-

practice claims for injunctive relief pursuant to the elements of

a prima facie case set forth in Teamsters,” the court concluded

they “will not be required to make out the elements for an

individual ADA claim if some or all of their claims are certified

for declaratory and injunctive relief.” Id. at 208. By the District

Court’s analysis, the elements of qualification and reasonable

accommodation are among those that, while perhaps necessary

to uncovering “the reason for a particular employment decision”

53

and thus resolving an individual claim of discrimination under

the ADA, are not likewise necessary to determining at the first

Teamsters stage whether an employer has engaged in a “‘pattern

of discriminatory decisionmaking’” prohibited under that

statute. Cooper, 467 U.S. at 876 (quoting Teamsters, 431 U.S.

at 360 n.46); see id. at 875–76 (contrasting the McDonnell

Douglas framework for individual claims of discrimination and

the Teamsters framework for pattern-or-practice claims). In

support of this analysis, plaintiffs point to Franks and

Teamsters, where inquiry into whether individual class

members were actual victims of discrimination—including

whether each class member was qualified for the job

sought—was reserved for the second stage of proceedings, and

did not need to be addressed for a finding of classwide liability

and relief to be reached. See Teamsters, 431 U.S. at 359, 369

n.53; Franks, 424 U.S. at 772–73. Plaintiffs reason that, since

“[i]t is axiomatic . . . that proof of class member ‘qualification’

in a Title VII class action is reserved for the remedial phase of

the litigation,” and since “proving ‘qualification’ is not

measurably different in an ADA class action than in a Title VII

one,” under both statutes “this element of proof is harmonious

with the Teamsters framework because it is determined only

after proving the existence of systemic discrimination.” Pls.’

Br. 36.

We disagree with this line of reasoning. As noted, the

ADA, and not the Teamsters method of proof, dictates what

substantive elements are necessary to reach a determination that

UPS has engaged in a pattern or practice of unlawful

Title VII provides:18

It shall be an unlawful employment practice for an

employer—(1) to fail or refuse to hire or to

discharge any individual, or otherwise to

54

discrimination, and to what extent these elements may overlap

with those necessary to an individual claim of discrimination.

That the adjudication of a Title VII class action under the

Teamsters framework may not require a showing of each class

member’s qualification to reach a finding of unlawful

discrimination, does not mean that the same conclusion applies

in the ADA context. Rather, “we ‘must be careful not to apply

rules applicable under one statute to a different statute without

careful and critical examination.’” Gross, No. 08-441, slip op.

at 6 (quoting Fed. Express Corp. v. Holowecki, 128 S. Ct. 1147,

1153 (2008)); see also id., slip op. at 7 n.2 (concluding, in light

of such examination, that “the textual differences between Title

VII and the ADEA . . . prevent us from applying [the Title VII

mixed-motives framework discussed in Price Waterhouse v.

Hopkins, 490 U.S. 228 (1989), and Desert Palace, Inc. v. Costa,

539 U.S. 90 (2003),] to federal age discrimination claims”). The

ADA and Title VII, by their plain language, do not treat the

qualification inquiry equivalently in their respective statutory

schemes, a substantive distinction the District Court failed to

incorporate into its certification analysis. Title VII prohibits

covered employers from discriminating against “any individual

. . . because of such individual’s race, color, religion, sex, or

national origin.” 42 U.S.C. § 2000e-2(a). This statutory18

discriminate against any individual with respect to

his compensation, terms, conditions, or privileges

of employment, because of such individual’s race,

color, religion, sex, or national origin; or (2) to

limit, segregate, or classify his employees or

applicants for employment in any way which

would deprive or tend to deprive any individual of

employment opportunities or otherwise adversely

affect his status as an employee, because of such

individual’s race, color, religion, sex, or national

origin.

42 U.S.C. § 2000e-2(a). Section 2000e-2(m) clarifies that

“[e]xcept as otherwise provided in this subchapter, an unlawful

employment practice is established when the complaining party

demonstrates that race, color, religion, sex, or national origin

was a motivating factor for any employment practice, even

though other factors also motivated the practice.” 42 U.S.C. §

2000e-2(m).

55

provision does not speak to qualification, but protects all

individuals from discrimination motivated by the immutable

characteristics specified in the statute. Courts have undertaken

inquiry into whether a plaintiff is qualified in the Title VII

context to evaluate “the reason for a particular employment

decision” in an individual discrimination case, Cooper, 467 U.S.

at 876—namely, to assess, under the McDonnell Douglas

framework, whether a plaintiff has offered sufficient evidence

to raise an inference of discriminatory treatment and to shift

56

onto the defendant the burden of producing a legitimate,

nondiscriminatory reason for its conduct. See McDonnell

Douglas, 411 U.S. at 802; see also Teamsters, 431 U.S. at 358

n.44 (“Although the McDonnell Douglas formula does not

require direct proof of discrimination, it does demand that the

alleged discriminatee demonstrate at least that his rejection did

not result from the two most common legitimate reasons on

which an employer might rely to reject a job applicant: an

absolute or relative lack of qualifications or the absence of a

vacancy in the job sought. Elimination of these reasons for the

refusal to hire is sufficient, absent other explanation, to create

an inference that the decision was a discriminatory one.”).

Thus, inquiry into an individual’s employment qualifications

may be integral to a court’s assessment of whether

discrimination on the basis of race, color, religion, sex, or

national origin has occurred; it is not likewise necessary to a

determination of whether such discrimination against that

individual, once proven to have occurred, is unlawful under the

statute.

The ADA does not define the scope of its protections and

prohibitions as broadly as Title VII. As noted, Title I of the

ADA prohibits covered employers from discriminating against

qualified individuals with disabilities because of their

disabilities, a prohibition that includes failing to reasonably

accommodate such individuals. See 42 U.S.C. § 12112(a),

(b)(5). In contrast to Title VII, it does not prohibit

discrimination against any individual on the basis of disability,

but, as a general rule, only protects from discrimination those

Cf. ADA, 42 U.S.C. § 12203(a) (prohibiting19

“discriminat[ion] against any individual because such individual

57

disabled individuals who are able to perform, with or without

reasonable accommodation, the essential functions of the job

they hold or desire. See Turner v. Hershey Chocolate USA, 440

F.3d 604, 607 (3d Cir. 2006) (“Congress enacted the ADA in

1990 in an effort to prevent otherwise qualified individuals from

being discriminated against in employment based on disability.”

(citing 29 C.F.R. § 1630)); Gaul, 134 F.3d at 579 (same); see

also Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795, 806

(1999) (characterizing an ADA plaintiff’s “burden of proving

that she is a ‘qualified individual with a disability’—that is, a

person ‘who, with or without reasonable accommodation, can

perform the essential functions’ of her job”—as “an essential

element of her ADA case” (quoting 42 U.S.C. § 12111(8)));

Ford v. Schering-Plough Corp., 145 F.3d 601, 605 (3d Cir.

1998) (recognizing that, generally speaking, “Title I of the ADA

restricts the ability to sue under its provisions to a ‘qualified

individual with a disability’”); Weigel v. Target Stores, 122 F.3d

461, 465 & n.3 (7th Cir. 1997) (collecting cases and finding

that, since “the ADA’s proscription against employment

discrimination protects only ‘qualified individual[s] with a

disability’ . . . , the elements of a plaintiff's prima facie showing

[of discrimination under the McDonnell Douglas framework]

must . . . include a showing that the plaintiff is a member of the

protected class—i.e., a ‘qualified individual with a disability’”

(first alteration in original)). As under Title VII, inquiry into19

has opposed any act or practice made unlawful by this chapter

or because such individual made a charge, testified, assisted, or

participated in any manner in an investigation, proceeding, or

hearing under this chapter.”). Accordingly, “[u]nlike a plaintiff

in an ADA discrimination case, a plaintiff in an ADA retaliation

case need not establish that he is a ‘qualified individual with a

disability.’” Krouse v. Am. Sterilizer Co., 126 F.3d 494, 502 (3d

Cir. 1997). “That conclusion follows inexorably from the

unambiguous text of the ADA. The Act not only applies to

those who are protected because they are ‘disabled’ as defined

therein. It also ‘protects “any individual” who has opposed any

act or practice made unlawful by the ADA or who has made a

charge under the ADA. This differs from the scope of the ADA

disability discrimination provision, 42 U.S.C. § 12112(a), which

may be invoked only by a “qualified individual with a

disability.”’” Shellenberger v. Summit Bancorp, Inc., 318 F.3d

183, 188 (3d Cir. 2003) (quoting Krouse, 126 F.3d at 502 (some

citations omitted) (emphasis added)).

58

whether a plaintiff alleging disability discrimination under the

ADA is qualified for the employment in question may be

relevant to assessing whether that plaintiff has offered evidence

sufficient to give rise to an inference that the employer

discriminated against him on the basis of a statutorily protected

characteristic. See, e.g., Walton v. Mental Health Ass’n of Se.

Pa., 168 F.3d 661, 667–68 (3d Cir. 1999) (“The McDonnell

Douglas Title VII burden shifting rules apply to claims of

discriminatory treatment under the ADA.”); Matczak v.

59

Frankford Candy & Chocolate Co., 136 F.3d 933, 938 (3d Cir.

1997); see also Raytheon Co. v. Hernandez, 540 U.S. 44, 49 n.3

(2003). Unlike Title VII, however, the ADA explicitly

incorporates this inquiry into its definition of prohibited

discrimination, and thus generally requires evaluation of

whether a disabled individual is “qualified” as defined under the

statute to determine not only whether discrimination on the

basis of disability has occurred, but more fundamentally,

whether such discrimination against that individual is unlawful.

Analysis of plaintiffs’ particular theories of

discrimination under the ADA bears out this general distinction

between the statutes. These theories all require inquiry into

whether class members are “qualified”—which includes

whether they can or need to be reasonably

accommodated—before a classwide determination of unlawful

discrimination, as contemplated at the first Teamsters stage, can

be reached. By the plain language of 42 U.S.C. § 12112(b)(5),

whether UPS unlawfully discriminated against employees by

failing to grant reasonable accommodations cannot be

determined without assessing whether those employees are

“otherwise qualified individuals with disabilities.” If a disabled

employee cannot perform the essential functions of the job he

seeks or desires with or without an accommodation that is

reasonable and that does not impose an undue hardship on the

employer, then under the terms of the ADA, the employee is not

entitled to an accommodation and the employer does not

“discriminate” against the employee in failing to grant him one.

See, e.g., Williams, 380 F.3d at 771 (“[A] failure to make a

60

reasonable accommodation for a disabled and qualified

employee constitutes discrimination under the ADA.” (citing

Taylor, 184 F.3d at 306)).

The same holds true for plaintiffs’ interactive-process

theory of discrimination. Under that theory, it may be easier to

envision a classwide claim of discriminatory treatment: that

UPS, by adopting and implementing the policies alleged by

plaintiffs, systematically refuses to engage in any sort of

interactive process with employees who are seeking to return to

work after medical leave but are restricted in their ability to

perform their former job. Rather than assessing whatever

individual limitations these employees may have and

determining what accommodations, if any, may be reasonable

and effective in addressing those limitations, UPS, as a matter

of blanket policy, simply refuses to employ them. Under this

theory of discrimination, UPS’s systematic denial of

individualized consideration, in itself, constitutes a violation of

the ADA, and can be proven without any showing that a given

individual was “qualified” under that statute.

We have recognized that “[w]hen the interactive process

works well, it furthers the purposes of . . . the ADA.” Mengine,

114 F.3d at 420; see also Taylor v. Pathmark Stores, Inc., 177

F.3d 180, 192 (3d Cir. 1999) (noting the “general logic of the

ADA . . . requires an interactive relationship between employer

and employee, and . . . an individualized evaluation of

employees’ impairments”). Engaging in a good-faith interactive

process may “not only lead to identifying a specific

61

accommodation that will allow a disabled employee to continue

to function as a dignified and valued employee, it may also help

sensitize the employer to the needs and worth of the disabled

person,” Conneen v. MBNA Am. Bank, 334 F.3d 318, 330 (3d

Cir. 2003), and disabuse the employer of any misperceptions it

may have of the employee’s condition and qualification for

employment. See Pathmark Stores, 177 F.3d at 192–94

(acknowledging, in its discussion of “regarded as” disability

under the ADA, that “the ADA has as a major purpose the

protection of individuals who are subject to stereotypes about

their abilities,” and promulgating a standard for assessing an

employer’s liability in the “regarded as” context that encourages

individualized consideration and “communication between

employer and employee, in the same way that the interactive

process for determining reasonable accommodations does”).

While, for these reasons, we have admonished

“employers [to] take seriously the interactive process,”

Williams, 380 F.3d at 772 n.16, we have not found an

employer’s failure to engage in that process and grant an

employee individualized consideration, with nothing more,

amounts to discrimination prohibited under the ADA. Rather,

if the employee “is not a ‘qualified individual’ under the ADA,

. . . [the employer’s] alleged failure to investigate into

reasonable accommodation is unimportant.” Gaul, 134 F.3d at

581; see Mengine, 114 F.3d at 420 (“[W]here a plaintiff cannot

demonstrate ‘reasonable accommodation,’ the employer’s lack

of investigation into reasonable accommodation is

unimportant.” (alteration in original) (quoting Willis v.

62

Conopco, Inc., 108 F.3d 282, 285 (11th Cir. 1997))); Donahue

v. Consol. Rail Corp., 224 F.3d 226, 233–34 (3d Cir. 2000)

(finding the same under the Rehabilitation Act, and rejecting the

argument that an employer’s “failure to engage in good faith in

the interactive process was alone sufficient to defeat summary

judgment and might even give rise to an independent cause of

action”); see also 29 C.F.R. § 1630.2(o)(3) (characterizing the

interactive process potentially required under the ADA as one

between an employer and a “qualified individual with a

disability”). “If it turns out there is no job which the worker

(with or without accommodation) is capable of performing, then

the company cannot be held liable for an ADA . . . violation.”

Mengine, 114 F.3d at 420; see Williams, 380 F.3d at 772

(“[B]ecause employers have a duty to help the disabled

employee devise accommodations, an employer who acts in bad

faith in the interactive process will be liable if the jury can

reasonably conclude that the employee would have been able to

perform the job with accommodations.” (quoting Donahue, 224

F.3d at 234–35)); Taylor, 184 F.3d at 317, 318 n.9 (“The

interactive process does not . . . remove the employee’s burden

of showing that a particular accommodation rejected by the

employer would have made the employee qualified to perform

the job’s essential functions,” and “the process is not necessary

in cases where accommodation is impossible.”); Mengine, 114

F.3d at 420 (“The ADA, as far as we are aware, is not intended

to punish employers for behaving callously if, in fact, no

accommodation for the employee’s disability could reasonably

See also, e.g., Battle v. UPS, 438 F.3d 856, 864 (8th Cir.20

2006) (“Under the ADA, if no reasonable accommodation is

available, an employer is not liable for failing to engage in a

good-faith interactive process.”); EEOC v. Sears, Roebuck &

Co., 417 F.3d 789, 805 (7th Cir. 2005) (“Failure to engage in

th[e] ‘interactive process’ cannot give rise to a claim for relief

. . . if the employer can show that no reasonable accommodation

was possible. Therefore, we ordinarily look first to whether

there is a genuine issue of material fact regarding the availability

of a reasonable accommodation, and if it is clear that no

reasonable accommodation was available, we stop there.”

(internal quotation marks omitted)); Kvorjak v. Maine, 259 F.3d

48, 52–53 (1st Cir. 2001) (“Although we have noted that there

may be situations in which failure to engage in the process

would constitute a failure to provide reasonable accommodation

that amounts to a violation of the ADA, we also consider such

an omission of no moment if the record forecloses a finding that

the plaintiff could perform the duties of the job, with or without

reasonable accommodation.” (internal quotation marks and

citations omitted)); Barnett v. U.S. Air, Inc., 228 F.3d 1105,

1116 (9th Cir. 2000) (en banc) (collecting cases and “hold[ing]

that employers, who fail to engage in the interactive process in

good faith, face liability for the remedies imposed by the statute

if a reasonable accommodation would have been possible”),

vacated in part on other grounds, 535 U.S. 391 (2002); Smith v.

Midland Brake, Inc., 180 F.3d 1154, 1174 (10th Cir. 1999) (en

63

have been made.” (quoting Willis, 108 F.3d at 285)).20

banc) (“Even if [the employer] failed to fulfill its interactive

obligations to help secure a reassignment position, [the

employee] will not be entitled to recovery unless he can also

show that a reasonable accommodation was possible and would

have led to a reassignment position.”).

64

Accordingly, while “an employer who fails to engage in

the interactive process runs a serious risk that it will erroneously

overlook an opportunity to accommodate a statutorily disabled

employee, and thereby violate the ADA,” Deane v. Pocono

Med. Ctr., 142 F.3d 138, 149 (3d Cir. 1998) (en banc), failure

to engage in the interactive process, in itself, does not constitute

such a violation. See Shapiro v. Twp. of Lakewood, 292 F.3d

356, 359 (3d Cir. 2002); Mengine, 114 F.3d at 420–21; see also

Pathmark Stores, 177 F.3d at 193 (noting that “an employer

[who acts on the belief that a perceived disability inherently

precludes performance of the essential functions of a job, with

or without accommodation] is failing to make an individualized

determination, as the ADA requires, and thus acts at its peril,”

as “the employer must be correct about the affected employee’s

ability to perform the job in order to avoid liability”). This is

consistent with the plain language of the ADA, which only

characterizes as unlawful discrimination an employer’s failure

to reasonably accommodate an “otherwise qualified individual”

when that accommodation does not impose an undue hardship,

and which does not speak directly to the process employers

should undertake in doing so. See 42 U.S.C. § 12112(b)(5); see

also Williams, 380 F.3d at 771 (“‘The ADA itself does not refer

The Ninth Circuit has held “‘100% healed’ policies are per21

se violations of the ADA. A ‘100% healed’ or ‘fully healed’

policy discriminates against qualified individuals with

disabilities because such a policy permits employers to

substitute a determination of whether a qualified individual is

‘100% healed’ from their injury for the required individual

assessment whether the qualified individual is able to perform

the essential functions of his or her job either with or without

accommodation.” McGregor v. Nat’l R.R. Passenger Corp.,

187 F.3d 1113, 1116 (9th Cir. 1999).

65

to the interactive process,’ but does require employers to ‘make

reasonable accommodations’ under some circumstances for

qualified individuals.” (quoting Shapiro, 292 F.3d at 359)).

In the same vein as their interactive-process theory of

discrimination, “plaintiffs argue that 100% healed policies are

per se unlawful under the ADA” because they inherently deny

employees individualized consideration and reasonable

accommodation. Hohider, 243 F.R.D. at 216. Under this21

theory, according to plaintiffs, “if they can establish the

existence of the alleged 100% healed policy, no further proof

would be needed to establish liability under the ADA.” Id.

We have not previously addressed whether “100%

healed” policies constitute per se discrimination under the ADA,

and we need not do so here. Even if we were to adopt that

theory, we do not believe plaintiffs can reach a determination of

unlawfulness under the ADA by proving only the existence of

66

a “100% healed” policy, without any inquiry into whether that

policy has been used to discriminate against individuals

protected by the ADA from such discrimination. Cf. Henderson

v. Ardco, Inc., 247 F.3d 645, 653 (6th Cir. 2001) (finding

plaintiff’s argument that a “‘100% healed’ rule was a per se

violation of the ADA” because it denied her “individual

assessment for her position” impermissibly “foreshorten[ed] the

inquiry” necessary under the ADA, as such policies do not

violate the ADA when applied to individuals not “disabled”

under the statute). Rather, by our understanding, such a policy

could be per se violative of the ADA because, when it is applied

against qualified individuals with disabilities, it would, by its

very terms, discriminate against those protected individuals on

the basis of their disabilities, systematically denying them the

reasonable accommodations to which they are entitled and

excluding them from employment for which they are otherwise

qualified. Thus, as with an employer’s blanket refusal to

engage in an interactive process with its employees, an

employer’s “100% healed” policy, even if deemed per se

discriminatory, cannot give rise to a finding of liability and

relief under the ADA without the statutorily required inquiry

into whether those affected by policy are disabled and able to

perform the essential functions of the jobs they seek or desire

with or without reasonable accommodation. See, e.g.,

Warmsley v. N.Y. City Transit Auth., 308 F. Supp. 2d 114,

119–22 (E.D.N.Y. 2004) (finding the existence of a “100%

healed” policy per se satisfies plaintiff’s showing of

discrimination on the basis of disability, but also requiring that

67

plaintiff be “disabled” and “otherwise qualified” to have an

ADA claim); Hammer v. Bd. of Educ., 955 F. Supp. 921, 927

(N.D. Ill. 1997) (denying plaintiff’s request for summary

judgment with respect to the claim that defendant “committed

a per se violation of the ADA” by implementing an alleged “no

work restrictions” policy, in part because “there [wa]s a genuine

question of fact regarding whether or not plaintiff was capable

of performing the essential functions of his job either with or

without reasonable accommodation”); Norris v. Allied-Sysco

Food Servs., Inc., 948 F. Supp. 1418, 1438 (N.D. Cal. 1996)

(discussing different potential interpretations of the per se

theory of liability under the ADA, all of which contemplate that

“the employee could have been reasonably accommodated

(without undue hardship) in a manner contrary to the [per se

discriminatory] policy but was not” in order to find that the

“employer violates the ADA” by implementing the policy);

Hutchinson v. UPS, 883 F. Supp. 379, 397–98 (N.D. Iowa

1995) (finding that a “100% healed” policy is per se

discriminatory, but that plaintiff could not assert this per se

claim because she was not “disabled” and thus lacked standing

to sue under the ADA); see also McGregor v. Nat’l R.R.

Passenger Corp., 187 F.3d 1113, 1116 (9th Cir. 1999)

(explaining that, under the per se theory, “[a] ‘100% healed’ . .

. policy discriminates against qualified individuals with

disabilities” because of the “individual assessment” it denies

Cf. Bates, 511 F.3d at 989, 994 (finding, in its review of a22

liability determination under 42 U.S.C. § 12112(b)(6) in a

private-plaintiff ADA class action, that “[b]efore an employee

can challenge an employer’s [facially discriminatory]

qualification standard, . . . an employee must first prove that he

is a ‘qualified individual’ within the meaning of the ADA,” and

remanding for proper consideration of qualification and

reasonable accommodation).

68

those “qualified individual[s]” (emphasis added)).22

C.

Based on this analysis of plaintiffs’ claims under the

ADA, assessment of whether class members are “qualified” is

necessary to determine whether UPS has engaged in a pattern or

practice of unlawful discrimination and thus can be held liable

for violating the ADA with respect to the class. As discussed,

in this case the ADA’s “qualified” standard cannot be evaluated

on a classwide basis in a manner consistent with Rule 23(a) and

(b)(2); applying the Teamsters evidentiary framework to

plaintiffs’ claims does not remove this impediment to

certification, even if all that is considered is the first, “liability”

stage of that framework. See Teamsters 431 U.S. at 359–60

n.45, 361 (noting that the “liability” stage of the framework

contemplates a “finding of a pattern or practice [of unlawful

discrimination that] change[s] the position of the employer to

that of a proved wrongdoer” and that “[w]ithout any further

evidence . . . justifies an award of prospective relief”). Because

69

the statutorily required inquiry into qualification is incompatible

with the requirements of Rule 23 in this case, and because

plaintiffs cannot adjudicate their claims and requested relief

without it, the class cannot be certified. See Rules Enabling

Act, 28 U.S.C. § 2072(b).

The District Court neglected to incorporate this

substantive evaluation of the ADA into its application of the

Teamsters framework to plaintiffs’ claims. In its analysis, the

court acknowledged that “[f]rom [our case law], it can be

inferred that merely showing that an employer has failed to

engage in the interactive process is not sufficient to recover

under the ADA for a failure to make a reasonable

accommodation claim, although it might bear on the proof of

such a claim.” Hohider, 243 F.R.D. at 191. It also recognized

that “none [of the cases relied upon by plaintiffs in support of

their per se theory of discrimination] are directly on point for

this case where plaintiffs . . . seek to proceed in a class action”

and “where the parties . . . dispute whether the named plaintiffs

and putative class members are qualified individuals under the

ADA.” Id. at 218. The court found, however, that since

Teamsters applied, it did not need to address these substantive

uncertainties in its analysis—it could certify for class treatment

plaintiffs’ interactive-process theory of discrimination without

resolving whether failure in the process itself gives rise to

liability, and it did not need to “assess the merits of plaintiffs’

argument that 100% healed policies are per se violations of the

ADA. It is enough for the court to find that this issue presents

a common issue of law to further support the finding that the

70

Rule 23(a) commonality requirement is met in this case with

respect to plaintiffs’ 100% policy claim.” Id.

Evaluation of what substantive elements are necessary to

prove plaintiffs’ theories of discrimination touches upon the

merits of their claims. It is also critical to the class certification

analysis in this case, and is thus properly undertaken at this

stage. “Because the decision whether to certify a class ‘requires

a thorough examination of the factual and legal allegations,’ the

court’s rigorous analysis may include a ‘preliminary inquiry

into the merits,’ and the court may ‘consider the substantive

elements of the plaintiffs’ case in order to envision the form that

a trial on those issues would take.’” In re Hydrogen Peroxide,

552 F.3d at 317 (citations omitted) (quoting Newton, 259 F.3d

at 166, 168). “An overlap between a class certification

requirement and the merits of a claim is no reason to decline to

resolve relevant disputes when necessary to determine whether

a class certification requirement is met.” Id. at 316. Rather,

“the court must resolve all factual or legal disputes relevant to

class certification, even if they overlap with the

merits—including disputes touching on elements of the cause of

action.” Id. at 307; see also id. at 319 (“A critical need is to

determine how the case will be tried.” (quoting Fed. R. Civ. P.

23 advisory committee’s note, 2003 Amendments)).

Here, the District Court found plaintiffs’ claims could be

adjudicated under the Teamsters evidentiary framework. To

envision the form that a trial on these claims would take under

this framework and to determine if the trial would be suitable

The District Court’s treatment of the ADA’s “disability”23

requirement suffers from the same analytical deficiency. As

noted, plaintiffs assert that UPS, by operation of its

discriminatory policies, “regards as disabled” all class members.

UPS contends plaintiffs’ “regarded as” theory cannot be proven

on a classwide basis in this case, but rather, like the ADA’s

“qualified” standard, would entail individualized inquiries too

extensive and divergent to meet Rule 23’s requirements.

In its certification analysis, the District Court recognized

71

for class treatment, it was necessary for the court to evaluate

what substantive elements must be addressed to determine

whether UPS engaged in a pattern or practice of unlawful

discrimination. While it did not need to resolve, for instance,

whether UPS’s alleged “100% healed” policy amounts to a per

se violation of the ADA, it did need to determine what elements

plaintiffs would have to prove under that theory to reach a

finding of liability and relief, and then assess whether this proof

can be made within the parameters of Rule 23. Noting that the

viability of the per se theory would affect all class members

alleging discrimination on the basis of the “100% healed”

policy, without addressing whether in this case the theory can

be adjudicated in a manner consistent with Rule 23, is not a

sufficiently rigorous analysis to support certification. See id. at

326 (“We emphasize that ‘[a]ctual, not presumed, conformance’

with the Rule 23 requirements is essential.” (alteration in

original) (quoting Newton, 259 F.3d at 167)); see also Falcon,

457 U.S. at 160.23

that “[w]hether plaintiffs can prove their ‘regarded as’ theory of

discrimination in this case with respect to the 100% healed

policy and the other policies in the lawsuit that are certified . .

. presents an additional common issue in this case.” Hohider,

243 F.R.D. at 220. It also found that “[t]he actions of UPS with

respect to [each named plaintiff] implicate the policies in issue

and if at the merits stage they are proven to exist would

implicate that [each named plaintiff] was regarded as disabled.”

Id. at 229–30. Identifying the “regarded as” theory of disability

as one common to the class and applicable to its named

representatives, however, does not establish that the theory can

be proven on a classwide basis—namely, that proof of the

existence of the policies alleged in the class claims would result

in a common finding of disabled status with respect to every

potential class member. In fact, the court seems to undermine

such a conclusion in its analysis of plaintiffs’ proposed class

definition, choosing to remove from that definition the

requirement that class members be “disabled” under the ADA

due to the number of individualized inquiries such a requirement

may entail with respect to the class. See id. at 209.

As we find the individualized inquiries presented by the

ADA’s “qualified” standard in this case render class

certification of plaintiffs’ claims and relief improper, we need

not resolve this question. For the reasons discussed supra,

however, the District Court should have. Instead of fully

assessing whether the element of disability, necessary to a

determination of unlawful discrimination under the ADA, could

72

be adjudicated in a manner consistent with Rule 23, the court

ended its analysis at the recognition that all plaintiffs allege the

same general theory of disability. Such analysis does not meet

the level of rigor necessary to support certification.

73

In certifying plaintiffs’ claims, the District Court

concluded the elements of qualification and reasonable

accommodation were unnecessary to the adjudication of the

claims and relief certified for class treatment. The court based

this conclusion solely on its understanding of the Teamsters

method of proof. It did not adequately consider whether the

manner in which it applied this evidentiary framework to

plaintiffs’ claims of discrimination was supported by the ADA,

the statutory basis for those claims. Namely, the court did not

address whether, under the ADA, an employer’s failure to

engage in an interactive process with its employees, or its

implementation of a “100% healed” policy, can amount to

unlawful discrimination without a showing that this conduct

affected “otherwise qualified individuals with disabilities.” See

42 U.S.C. § 12112(b)(5). Instead, the court relied on the

Teamsters evidentiary framework to excise these inquiries from

its certification analysis, while neglecting to reconcile whether

the consequences of that analysis were substantively compatible

with the ADA. Such reliance was erroneous, and resulted in the

improper grant of certification to the class.

74

V.

In addition to the individualized inquiries necessary to

adjudicate plaintiffs’ claims, UPS contends the nature of the

relief sought by plaintiffs renders the class ineligible for

certification under Rule 23(b)(2). As noted, Rule 23(b)(2) is

intended for classes where “final injunctive relief or

corresponding declaratory relief is appropriate respecting the

class as a whole.” Fed. R. Civ. P. 23(b)(2). The advisory

committee’s 1966 note to Rule 23(b)(2) specifies that “[t]he

subdivision does not extend to cases in which the appropriate

final relief relates exclusively or predominantly to money

damages.” Fed. R. Civ. P. 23(b)(2) advisory committee’s note,

1966 Amendment. According to UPS, plaintiffs’ requests for

monetary relief—in the form of back pay and compensatory and

punitive damages—predominate over the injunctive and

declaratory relief sought, in contravention of Rule 23(b)(2). As

the District Court acknowledged, we have not yet spoken on

how the predominance of monetary relief in the Rule 23(b)(2)

context should be measured and our sister circuits are split on

that question, with some adopting the “incidental damages”

standard set forth by the Court of Appeals for the Fifth Circuit

in Allison v. Citgo Petroleum Corp., 151 F.3d 402 (5th Cir.

1998), and others opting for a more discretionary, “ad hoc

balancing” approach such as that used by the Court of Appeals

for the Second Circuit in Robinson v. Metro-North Commuter

In Allison, the Fifth Circuit held that “monetary relief24

predominates in (b)(2) class actions unless it is incidental to

requested injunctive or declaratory relief.” 151 F.3d at 415.

The Fifth Circuit elaborated:

By incidental, we mean damages that flow

directly from liability to the class as a whole on

the claims forming the basis of the injunctive or

declaratory relief. Ideally, incidental damages

should be only those to which class members

automatically would be entitled once liability to

the class (or subclass) as a whole is established.

That is, the recovery of incidental damages should

typically be concomitant with, not merely

consequential to, class-wide injunctive or

declaratory relief. Moreover, such damages

should at least be capable of computation by

means of objective standards and not dependent in

any significant way on the intangible, subjective

differences of each class member’s circumstances.

Liability for incidental damages should not

require additional hearings to resolve the

disparate merits of each individual’s case; it

should neither introduce new and substantial legal

or factual issues, nor entail complex

individualized determinations. Thus, incidental

damages will, by definition, be more in the nature

75

R.R. Co., 267 F.3d 147 (2d Cir. 2001). The court predicted24

of a group remedy, consistent with the forms of

relief intended for (b)(2) class actions.

Id. (citations omitted).

In Robinson, the Second Circuit “decline[d] to adopt the

incidental damages approach set out by the Fifth Circuit in

Allison,” 267 F.3d at 164, opting instead for an “ad hoc

balancing” approach:

[W]hen presented with a motion for (b)(2) class

certification of a claim seeking both injunctive

relief and non-incidental monetary damages, a

district court must consider the evidence

presented at a class certification hearing and the

arguments of counsel, and then assess whether

(b)(2) certification is appropriate in light of the

relative importance of the remedies sought, given

all of the facts and circumstances of the case. The

district court may allow (b)(2) certification if it

finds in its informed, sound judicial discretion

that (1) the positive weight or value to the

plaintiffs of the injunctive or declaratory relief

sought is predominant even though compensatory

or punitive damages are also claimed, and (2)

class treatment would be efficient and

manageable, thereby achieving an appreciable

measure of judicial economy.

Although the assessment of whether

injunctive or declaratory relief predominates will

76

require an ad hoc balancing that will vary from

case to case, before allowing (b)(2) certification a

district court should, at a minimum, satisfy itself

of the following: (1) even in the absence of a

possible monetary recovery, reasonable plaintiffs

would bring the suit to obtain the injunctive or

declaratory relief sought; and (2) the injunctive or

declaratory relief sought would be both

reasonably necessary and appropriate were the

plaintiffs to succeed on the merits. Insignificant

or sham requests for injunctive relief should not

provide cover for (b)(2) certification of claims

that are brought essentially for monetary

recovery.

Id. (internal quotation marks, brackets, and citations omitted);

see also Molski v. Gleich, 318 F.3d 937, 949–50 & 950 n.15 (9th

Cir. 2003) (rejecting the Allison approach in favor of “a similar

approach [to the one set forth] in Robinson,” “focus[ing] on the

language of Rule 23(b)(2) and the intent of the plaintiffs in

bringing the suit”).

77

we would follow the rationale of the “incidental damages”

approach, and reviewed plaintiffs’ requested relief under that

standard. Hohider, 243 F.R.D. at 242. The court found

plaintiffs’ claims for compensatory and punitive damages were

not incidental to the injunctive and declaratory relief sought,

and thus not suitable for 23(b)(2) certification. The court

determined, however, that back pay “is precisely the kind of

78

monetary relief that could constitute incidental damages under

Allison,” id. at 244, as it is “the kind of equitable remedy that

could flow directly from liability to the class as a whole on the

claims forming the basis of the injunctive or declaratory relief.”

Id. at 243; see also id. at 243–44 (“Recovery of back pay, if it

is ‘capable of computation by means of objective standards and

not dependent in any significant way on the intangible,

subjective differences of each class member’s circumstances,’

‘does not require additional hearings to resolve the disparate

merits of each individual’s case,’ and does not ‘introduce new

and substantial legal or factual issues, nor entail complex

individualized determinations.’” (quoting Allison, 151 F.3d at

415)). Accordingly, in its certification order, the court allowed

for the possibility that plaintiffs may seek, in addition to

injunctive and declaratory relief, “back pay or other equitable

relief for individual class members if there is a protocol for

identifying those monetary damages which sets forth the

objective standards to be utilized in determining the amount of

those damages in a way that does not require additional hearings

on individualized circumstances.” Id. at 245.

Neither party challenges the court’s adoption of the

“incidental damages” approach to measure monetary

predominance, or the court’s determination that plaintiffs’

requested compensatory and punitive damages are ineligible for

class treatment under Rule 23(b)(2). Nor does our preceding

analysis of plaintiffs’ claims require us to take up these matters.

As discussed, the individualized inquiries necessary to

determine whether UPS has engaged in a pattern or practice of

79

unlawful discrimination under the ADA render certification of

this class improper, even if plaintiffs were to seek solely

injunctive or declaratory relief. As UPS has not acted “on

grounds that apply generally to the class, so that final injunctive

relief and corresponding declaratory relief is appropriate

respecting the class as a whole,” Fed. R. Civ. P. 23(b)(2), there

is no need to evaluate whether monetary relief predominates

over that injunctive and declaratory relief.

Furthermore, even if we were to agree with the District

Court that a finding of liability and an award of injunctive and

declaratory relief could be reached on a classwide basis without

addressing these individualized inquiries, such inquiries, under

the court’s analysis, would still be necessary to address certain

questions of individual relief with respect to each class member.

See Hohider, 243 F.R.D. at 208 n.69 (“[T]he individual

elements of a reasonable accommodation claim may be relevant

at the second, remedial stage of proceedings if plaintiffs seek

individual relief on behalf of individual class members.”). As

such, plaintiffs’ requested compensatory and punitive damages

would be ineligible for class treatment under Rule 23(b)(2),

regardless of whether the “incidental damages” or the “ad hoc

balancing” approach is applied. See Allison, 151 F.3d at 415

(“Liability for incidental damages should not require additional

hearings to resolve the disparate merits of each individual’s

case; it should neither introduce new and substantial legal or

factual issues, nor entail complex individualized

determinations.”); Robinson, 267 F.3d at 164 (“The district

court may allow (b)(2) certification if it finds in its informed,

The interaction between the requirements for class25

certification under Rule 23(a) and (b) and the authorization of

issues classes under Rule 23(c)(4) is a difficult matter that has

generated divergent interpretations among the courts. Compare,

e.g., Castano v. Am. Tobacco Co., 84 F.3d 734, 745–46 n.21

(5th Cir. 1996) (“A district court cannot manufacture

predominance through the nimble use of subdivision (c)(4). The

proper interpretation of the interaction between subdivisions

(b)(3) and (c)(4) is that a cause of action, as a whole, must

satisfy the predominance requirement of (b)(3) and that (c)(4) is

a housekeeping rule that allows courts to sever the common

issues for a class trial. Reading rule 23(c)(4) as allowing a court

80

sound judicial discretion that . . . class treatment would be

efficient and manageable, thereby achieving an appreciable

measure of judicial economy.” (internal quotation marks

omitted)).

According to UPS, the District Court’s determination

that compensatory and punitive damages predominate, in itself,

precludes certification of the class in its entirety under Rule

23(b)(2), and the court erred by choosing instead to sever the

problematic relief from the class and certify what remained.

Plaintiffs respond that the court acted within its proper

discretion under Rule 23(c)(4), which provides that “[w]hen

appropriate, an action may be brought or maintained as a class

action with respect to particular issues.” Fed. R. Civ. P.

23(c)(4). Given the class certification’s other defects, we need

not resolve this matter here, but we note that a court’s decision25

to sever issues until the remaining common issue predominates

over the remaining individual issues would eviscerate the

predominance requirement of rule 23(b)(3); the result would be

automatic certification in every case where there is a common

issue, a result that could not have been intended.” (citations

omitted)), and Allison, 151 F.3d at 421–22 (finding plaintiffs’

request to “certify[] the first [Teamsters] stage of [their Title

VII] pattern or practice claim under (b)(3) is foreclosed by

Castano,” considering that the claim as a whole “implicates

predominantly individual-specific issues” and “the plaintiffs

have not agreed drop their claims for compensatory and punitive

damages as a class action issue”), with In re Nassau County

Strip Search Cases, 461 F.3d 219, 227 (2d Cir. 2006) (“[A]

court may employ subsection (c)(4) to certify a class as to

liability regardless of whether the claim as a whole satisfies

Rule 23(b)(3)’s predominance requirement.”), and Robinson,

267 F.3d at 167 & n.12, 169 (calling into question the

understanding of Rule 23(c)(4) expressed in Castano and

Allison and finding the district court erred “in not certifying the

liability stage of the pattern-or-practice disparate treatment

claim for (b)(2) treatment,” as courts “should take full advantage

of [Rule 23(c)(4)] to certify separate issues in order to reduce

the range of disputed issues in complex litigation and achieve

judicial efficiencies” (internal quotation marks and ellipsis

omitted)).

We have not yet engaged this specific question, nor need

we do so here. In Chiang v. Veneman, we stated “Rule 23(c)(4)

81

both imposes a duty on the court to insure that only those

questions which are appropriate for class adjudication be

certified, and gives it ample power to ‘treat common things in

common and to distinguish the distinguishable.’” 385 F.3d 256,

267 (3d Cir. 2004) (quoting Jenkins v. United Gas Corp., 400

F.2d 28, 35 (5th Cir. 1968)). Plaintiffs rely on this description

of Rule 23(c)(4) to support the District Court’s decision to sever

their compensatory and punitive damages claims rather than

deny certification entirely. While this language recognizes, as

a general matter, the discretion vested in courts by Rule

23(c)(4), we do not believe Chiang sheds much light on the

overall contours of that discretion or on the propriety of the

District Court’s use of Rule 23(c)(4) in the case before us.

Chiang involved a class seeking certification for claims of

discrimination based on race, gender, and national origin under

the Equal Credit Opportunity Act (ECOA), which, in language

similar to Title VII, prohibits creditors from discriminating on

various grounds in the credit-transaction context. See id. at 259

(quoting ECOA, 15 U.S.C. § 1691(a)). With respect to Rule

23(c)(4), we found that, because the issue of whether the

defendant engaged in the alleged discriminatory course of

conduct was “easily distinguishable” from the issue of whether

class members were individually eligible to receive loans, it

would be permissible to “affirm certification on the former and

leave it to the district court to determine whether class

certification might be appropriate on the latter.” Id. at 267. We

note, however, that Chiang involved none of the complexities

82

that are present here.

Plaintiffs, for instance, have demanded a jury trial in this26

case. The District Court did not explain how the severance of

plaintiffs’ damages claims from the class may affect this

demand, particularly with respect to the requirements of the

Seventh Amendment—an issue both Allison and Robinson take

83

to exercise its discretion under Rule 23(c)(4), like any other

certification determination under Rule 23, must be supported by

rigorous analysis. Furthermore, we believe several

considerations are relevant to determining “[w]hen [it is]

appropriate” for a court to certify a class only “with respect to

particular issues,” Fed. R. Civ. P. 23(c)(4): the type of claim(s)

and issue(s) in question; the overall complexity of the case and

the efficiencies to be gained by granting partial certification; the

substantive law underlying the claim(s), including any choice-

of-law questions it may present; the impact partial certification

will have on the constitutional and statutory rights of both the

class members and the defendant(s); the potential preclusive

effect that resolution of the proposed issues class will have; and

so forth. See, e.g., Principles of the Law of Aggregate Litigation

ch. 2 (A.L.I. Proposed Final Draft Apr. 1, 2009). Once the

District Court decided that plaintiffs’ compensatory and punitive

damages claims were incompatible with Rule 23(b)(2), however,

it did not explain why this determination did not interfere with

certification of the class for other purposes, nor did it address

what effect, if any, such partial certification would have on the

class action going forward.26

up (albeit divergently) in their partial-certification analyses.

Compare Allison, 151 F.3d at 422–25, with Robinson, 267 F.3d

at 169–70 & n.13.

84

In a similar vein, we agree with UPS that the District

Court’s conditional certification of plaintiffs’ request for back

pay was improper. A trial court must “make a definitive

determination that the requirements of Rule 23 have been met

before certifying a class.” In re Hydrogen Peroxide, 552 F.3d

at 320; see also id. at 319 (noting that the 2003 amendments to

Rule 23 “eliminated the language that had appeared in Rule

23(c)(1) providing that a class certification ‘may be

conditional’”). While courts retain discretion under Rule

23(c)(1)(C) to “alter[] or amend[] before final judgment” an

order granting or denying class certification, see id. at 319 n.21,

“courts should not grant certification except after searching

inquiry, and . . . should not rely on later developments to

determine whether certification is appropriate.” Id. at 320

(quoting 5 James Wm. Moore et al., Moore’s Federal Practice

§ 23.80[2] (3d ed. 2008)). Accordingly, even if the District

Court were correct that plaintiffs’ claims of injunctive and

declaratory relief could be properly certified under Rule

23(b)(2), it was not sufficient for the court simply to identify

back pay as potentially incidental to such relief, and grant it

certification on the condition that it later prove to be so. Rather,

before moving forward with certification, it was necessary for

the court to determine whether plaintiffs’ back-pay request

actually conforms with the requirements of Rule 23, including

85

Rule 23(b)(2)’s monetary-predominance standard. And, were

the court to find such relief could go forward under Rule

23(b)(2), it would then need to address how that relief would be

managed, specifying, for example, the methodology by which

calculations and awards of relief would be made with respect to

individual class members. See id. at 319 (pointing out that “in

introducing the concept of a ‘trial plan,’ the Advisory

Committee’s 2003 note [to Rule 23] focuses attention on a

rigorous evaluation of the likely shape of a trial on the issues”).

Such rigorous analysis would be appropriate were the court to

use either the “incidental damages” or “ad hoc balancing”

standard to evaluate plaintiffs’ back-pay request, as both stress

that only monetary relief sufficiently manageable on a classwide

basis may be certified under Rule 23(b)(2). See Allison, 151

F.3d at 415 (stating that monetary relief deemed “incidental”

and thus certifiable under Rule 23(b)(2) “should at least be

capable of computation by means of objective standards and not

dependent in any significant way on the intangible, subjective

differences of each class member’s circumstances”); Robinson,

267 F.3d at 164 (finding that “non-incidental” monetary relief

may not be certified under Rule 23(b)(2) if it cannot be

adjudicated on a classwide basis in an “efficient and

manageable” fashion). The court’s deferral of this analysis post

class certification was an abuse of discretion.

VI.

For the foregoing reasons, we find the District Court

abused its discretion in granting certification, and the class, as

86

defined, cannot be certified under Rule 23(a) and (b)(2) with

respect to its claims and requested relief. Accordingly, we will

reverse the District Court’s order of class certification and

remand for proceedings consistent with this opinion.